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CANADA NATIONAL LIBRARY BIBLIOTHEQUE NATIONALE •i PREFACE. diffi^^ ."''''.'"'' ^'''' "° te'^t book on the difficult and most important branch of Real Pron erty Law that relates to Power of q!L ?' Morto-nffo (-•„, 1 1 . ""^' ot hale under «teps of Notle, AdtXmtt r "^i'.*''' '''™"' CWeyance. Colts andX:lSSr' '^'^' BenlZSeti ofTh ^"^"'^"^ ^^^'°'«^ '° relation of the Power of q - .' T^^^^"'' ""-^ *•>« of the mortgagee- ' *° "^^ ""^^'^ ^""^-iies ffl 149 IV PliEFACE. In the Appendix of Statutes are collected the subsisting provisions that relate to the subject of this work, together with references to the para- graphs where commented on, or to cases where judicially interpreted. In the Appendix of Forms will be found a copious collection of recent and carefully selected precedents. The Contents include a detailed list of these precedents, as well as a general sumnuiry of the chief topics discussed in the text. There is appended to the work a minute Analytical Index to all the points discussed or illustrated in the Text or in the Forms-, and to all the statutory provisions now in force. My best acknowledgments are due to my father Mr. J. Howard Hunter, and to my brother W. H. Hunter, Barristers-at-Law, for their kind assistance in the revision of the proofs, as well as for valuable suggestions in the general prepara- tion of the work. A. T. Hunter. Equity Chambers, Toronto, I 14th April, 1892. ) TABLE OF CONTENTS. CHAPTEK I. ; INTRODUCTION ORIGIN, RECOGNITION AND GROWTH OF POWER. Early history ' ^*=" Period of doubtful validity Croft V. Powell _ Gradual introduction King V. Edington ' Validity established [[ \] Corder v. Morgan Concurrence of mortgagor unnecessary Lord Eldon's doubts f h'f Xf '"'"" "' a^'-emVntV tor m;;tgag;s "with powe; oil J. VVicKson s view Lord Selborne's decision Power formerly not implied Mortgages settled by court *. Meaning of power to mortgage. .*. Includes the giving of mortgages wiih power of sale." ." Ontario Statutes implying power Imp. Conveyancing Act 1881, s. 19 . . . . .'. ION. 1 1 1 2 2 •8 8 4 5 6 6 6 7 7 8 8 9 10 VI TAIiLK OF VOSTESTS, CHAPTER II. NECESSITY FOR POWER : " TRUSTEESHIP MORTGAGEE. OF Section. Practical value of power 11 Equitable necessity for power I'i " Trusteeship " of mortj^a^jee IH Attempted definition of his trusteeship 14 Some distinctions between mort}iaf,'ee and trustee 1;> Not equal rights to both parties to enforce power 15 Not an express trustee 15 Trustee restrained where mortgageo not 15 Conflict of interest with duty 15 Wilful default; IC Purchase by second mortvjagee of first mort»e 1(> Ground of trusteeship , 17 Further distinctions 17 Locus of trusteeship IS Imputation of trusteeship is figurative 1!) Trusteeship a secondary characteristic IJ) Tendency of courts 20 True principle 20 CHAPTER III. CONDITIONS OF EXERCISE OF POWER. Default 21 Exceptions to, necessity of default 22 ' Acceleration ' . 28^ Continuance of power 24 S'^atute of Limitations 25 Capacity to exercise power 27 Right party to exercise 28 lAULE OF COSTESTS. VII CHAPTER IV. VARIOUS FORMS OF POWER OF SALE ANT) THEIR CONSTRUCTION. Section. 29 89 80 80 81 88 88 84 85 86 87 88 88 80 40 40 40 41 41 41 42 42 48 43 48 45 45 46 47 47 48 General principles Ktrict construction Power generally irrevocable but may be modirteil Grammatical rules Various forms Statutory implied power (Chap. 102) Trust deed Advantages of Disadvantages of Power of attorney Apparently absolute deeds Bartels v. Jltn ;- n Danger of this form Sh • I Form mortgages Clause 14 in schedule Statutory directions Interpretation ' One month ' Barry v. Anderson Third direction lie Gilchrist and Island , . . . Later cases Clark v. Harvey Mathematical theory Additions to form Barry v. Anderson Attempt to find true principle Effects of exclusion from Act Assigns of mortgagee Scope of ' assigns ' Exceptions to rule Gilmorr v. White Application of rule Necessity for entry British Canadian v. Ray Anderson v, Hanna Attempt to find true principle Suggestions in drawing powers according to Act Avoid internal (juaiiflcations 49 60 51 51 51 62 53 64 Vlll TABLE OF CoyiEXTS. CHAPTER V NOTICE. Section-. Notice, generally 55 Not always necessary 55 Effect of notice where none required 5(5 Notice left to discretion 68 To whom given 51> Depends on terms of power 59 How ascertained ... llr lie* lift 117 117 118 118 119 120 121 122 12:i 128 124 125 12; 127 127 128 129 129 129 130 130 131 132 133 134 135 135 135 13(> 137 137 138 TABLE OF CONTENTS. XI CHAPTEE VII. PURCHASER AND CONVEYANCE. t;*!,/ t , Section. litle of purchaser Lord Cranworth'a Act ..'....' ^'^'^ Specific performance against purchaser. ..........,', Jt? Conveyance To whom made [[[] ^^^ Contents of ^^^ Concurrence of mortgagor , " .\ " ^^^ Lunatic vendor ] \ \ ^'^* Right to separate receipts ^^t Irregularities, generally ^^'^ How far they affect purchaser? . .' . ....'.'...*.... ^^'^ Non-inquiry clause /_ ^■*'* Dicker v. Angerstein ^^^ Two classes of such clauses .'..*...." " ' ^^^ Remedy of mortgagor ' " ^^'^ Effect of actual knowledge ,' '^'' Jenkins v. Jones ^^^ Solicitors acting for both parties JfJ Purchase by particular persons .' .' j!.? Charities ^°** Second mortgagees ^^ Watkins v. McKellar ^^.t Brown v. Woodliouse '. ^?f The mortgagor " " ^''■' Bidding by the mortgagor. ^''*^ '^ 1'j7 CHAPTEE VIII. PURCHASE BY MORTGAGEE. Mortgagee may not purchase Acquiescence of mortgagor " ' Scope of rule Solicitor and attorneys Sale to one's company Kil 1()2 I i •1! Xll TABLE OF CO STENTS. Mort<;agee stepping into shoes of third party. Position of mortgagee-purchaser Effect of leave to bid Meaning of mortgagee's bid Limit to rule against mortgagee Form of deed to himself Purchase from sheriff, by mortgagee Section. 163 164 165 166' 1G7 168 169 CHAPTER IX. PROCEEDS AND SURPLUS. Application of proceeds 170 Statutory directions as to 170 Principles of 171 Thompson v. .Hudson 171 Interest, what arrears of 173 Allan V. McTavish , 173 Expenses (other than 'costs') 174 Just allowances 17'"> Expenses that have been allowed .17(1 Lasting improvements 177 Shepard v. Jones 177 Conditions of inquiry as to improvements 178 Limit to improvements 178 Second mortgagee cannot improve as against first 1 80 Profit charges, no allowance for. ISl Can mortgagee stipulate for ? 182 Rights of subsequent incumbrancers 1' •* Sale by first mortgagee and mortgagor 184 Buying up second mortgage 185 Selling subject to first mortgage 180 Right to account 187 Liability of 1st to 2nd mortgagee for mistakes 188 Wilful default 189 Priorities among puisne incumbrancers 190 Judgment creditors 191 Garnishment 191 Surplus 192 Mortgagee has no right to 192 Or of retainer 1 93 Interest on 194 TABLE OF CONTENTS. XIU Section. Payment on advice of solicitor 193 To whom surplus payable 195 When to owner of equity (a) 195 Payment into court 196 Statute of Limitations applied to surplus 197 Dower in surplus 198 Meaning of Dower Acts 198 Mode of application of surplus where dower 198 CHAPTER X. REMEDIES OF OWNER OF EQUITY. Injunction Not a matter of course Insufficient grounds for Sale by Ist mortgagee at request of mortgagor. Injury must be irreparable Good grounds for injunction When to be applied for Conditions of granting Interlocutory E.T parte Actions to redeem, set aside, etc Grounds for setting aside Right to redeem, is it absolute ? Discretion as to redemption after sale Refusal to set aside, where bona fide purchaser. Action for damages for irregular sale Effect of invalid sale 199 199 200 201 202 203 204 205 206 207 208 209 210 211 212 213 214 CHAPTER XI. COSTS. General rule 215 Nature of mortgagee's right to add costs to security 216 Costs of sale proceedings 217 Costs of abortive sale 217 Mortgage deed 218 Search of title 219 XIV TABLE OF CONIENTS. Section. Costs in relation to debt 220 Costs of legal correspondence 220 Costa in relation to the property 221 Resisting action at request of mortgagor 221 Costs of successful litigation 222 No costs unless litigation succeeds 223 Costs unnecessarily onerous 223 Costs in action to redeem 224 When in favor of mortgagee 224 When against him 225 Tender or payment 226 Costs in action for account after sale 227 Costs not allowed where fraud improperly alleged 228 Costs of a mortgagee-solicitor 229 No profit costs 229 Can mortgagee stipulate for ? 230 Taxation 231 Third party section 231 Re McDonald 232 Taxation under R. S. O. c. 102 233 Effect of delivery of bill 234 Scale of taxation 235 Nature of right to tax 236 CHAPTER XII. RELATION TO OTHER REMEDIES. Remedies concurrent 237 Power of sale and foreclosurb 238 Kelly V. Imperial 238 Foreclosure not governed by conditions of power 239 Power of sale and action on covenant 240 Power of sale after other remedies 241 Statutory restrictions, chap. 102, s. 30 242 Exception where notice not essential 243 Subsequent proceedings of mortgagor 244 Conclusion 245 TADLE OF COS TENTS. XV APPENDIX A. STATUTES. StCTlON. R. S. O. 1BS7, c. 51, S8. 14, 15 24(5 R. S. O. 1887, c. 100. 88. 1, 4,5,(5, 7, 12, 15, Hi, 17, 18-27, 30-37 247-2.')3 R. S. O. 1887, c. 102 255-257 . 1 V. c. 15 2.38 51 V. c. 27 250 R. S. O. 1887, c. 107, ss. 1-5, Schedule A., Schedule B.. 14, IC. 2(50 R. S. O. 1887, c. 110, 88. 8, 16-28 (t) 2(53 R. S, O. 1887, c. Ill, 88. 17, 18, 19, 22, 33 2(51-2 R. S. O. 1887,0. 114,8.35 263 R. S. O. 1887, c. 116, 88. 8, 28, 29, 33 264 R. S. O. 1887, c. 133, ss. 1, 2, 3, 5, 6, 7, 8 265 R. S. O. 1887, c. 137, ss. 3-9 (a) 2(55 64 V. c. 19, 88. 1, 2, 3, 8, 10, 13, 14 (6) 265 R. S. O. 1887, 0. 147, ss. 31-52 (c) 2(55 APPENDIX B. FORMS. Power clauses (proviso as to address) 267 Non-inquiry clauses 267-268 Clause allowing special conditions 269 Power with or without notice 270 Without notice (in case of insolvency) 271 Clause excludinj^ power of sale 272 Reservation to assii»ns of mortfjagee 273 Stipulation for profit costs 274 Express covenant as to expenses of mortgagee (a) 274 Power clause in mortgage of leaseholds (b) 274 Notice of sale, common form 275 Notice of sale, for publication 276 Order allowing " further proceedings " 277 Indorsement on notice by party serving (a) 277 Acknowledgment of service (b) 277 Advertisement of sale 278 Declaration of service of notice 279 XVI TABLE OF CONTEXTS. SEcrioN. Declaration of posting up 280 insertion of advertisement 281 notification of auction 282 bill-poster 283 auctioneer 284 as to default 283 Agreement to postpone sale under power (a) 285 Agreeme;it for extension of mortgage (b) 285 Assent of second mortgagee to extension (c) 285 'Standing' conditions of sale 286 General conditions 287 (1) Highest bidder to bo purchaser 287 (2) Eeserve price 287 (3) Minimum advance in bidding 287 (4) Purchaser to sign agreement 287 (5) Completion of purchase 287 (6) Date of giving possession 287 (7) Search of title (a) 287 (8) Time for objections (a) 287 (9) Rescission clause {') 287 (10) As to errors in descriptions (a) 287 (11) As to conveyance (a) 287 (12) Power to resell on purchaser's default. . (a) 287 Memorandum u'' agreement with purchaser 288 by auctioneer (n) 288 by purchaser (&) 288 Notica : Purchaser to mortga'^ae, to complete (c) 288 Notice : Mortgagee to purchaser, to complete (rf) 288 Purchase deed 289 Covenant in, that mortgage valid (a) 289 Fuller recital of advertisement (b) 289 Mortgage back to vendor, recital in 290 Conveyance of leaseholds under power 291 Deed by building society undier power 292 Notice : Mortgagee to tenant to pay rent to purchaser 293 Notice ; Purchaser to t^ant 294 Quit claim deed, mortgagor to purchaser 295 Release ef equity of redemption 29(> Conveyance by mortga;;ee and mortgagor (part of purchase money being paid in satisfaction of debt) 297 Recital in similar conveyance, when mortgagee satisfied with remaining security 298 Similar conveyance where it is desired to keep mortgage on foot 299 Bill of costs 800 POWER OF SALE IN MORTGAGES. CHAPTER I. INTRODUCTION. ORIGIN, liECOGNITION AND GROWTH OF POWER. 1. The remedy by power of sale has the merit ^j*j{yy — or disadvantage — of not having its origin lost in the mists of antiquity, but of having sprung from the necessities of modern conveyancing, and of having been more readily and fully recognized and sanc- tioned by Courts of Equity as those necessities have become more apparent. Unlike the right to foreclose, the right of the mortgagee to personally make sale of the property that secures his debt, was not formerly inherent in the nature of the security, but was a right arising from an express term in the mortgage contract. Nor has it always been con- f ^Ji^t^^u" sidered possible for the mortgagee, even by virtue '*"^'*^ of such express term, to extinguish by his sale of the lands mortgaged the interest in them of the mortgagor, without his concurrence. For a time a shadow of invalidity was cast over the right by the case of Croft v. Powell (a), where a party claiming under a mortgagor was permitted to re- deem many years after the exercise of a power of sale. It seems that by lease and release, dated of Croft V. Powell. (tt) Comyn 603. H.P.8. 4 row i: II OF SALE. 8««««'» the IGth and 17th of January, 1708, Robert House conveyed certain lands to one Baldwin and his heirs ; and, by a defeasance bearing even date with the release and executed at the same time, it was iigreed that if House should repay certain moneys wi'jhin one year, then Baldwin should reconvey to him ; but, that if he failed to pay those moneys within the year, then Baldwin should mortgage or absolutely sell the said lands free from redemption, and, out of the money raised by such mortgage or sale, pay the said moneys and interest and be accountable for the surplus to House and his heirs. Under authority of this clause, Baldwin did con- vey to one Gabriel Powell and his heirs. But it was resolved by the court " that the estate was redeemable ; for the estate conveyed to Baldwin and his heirs being defeasanced by a deed of the same date was in its nature a mortgage to him ; and therefore, though the money was not paid within the year, yet the mortgagor might still redeem upon payment of principal and interest, at any time while the estate continued in the hands of Baldwin * * If then Baldwin on non-pay- ment within a year stood a trustee, as is insisted, for House, his vendees coming in with notice of that trust, will stand in the place of Baldwin him- self who is acknowledged to be red deniable." Gradual recogni- tion. 2. From this decision it would appear that powers of sale were in the last century regarded in equity as evasions of the rule " once a mortgage always a mortgage," and as strokes unfairly aimed at the right to redeem, which was not to be cut out iiilj. ISTnoDUCTKhW. 3 ft House and his .ate with B, it was moneys reconvey ) moneys rtgage or emption, rtgage or b and be his heirs, did con- irs. But ^tate was Baldwin deed of tgage to was not light still erest, at he hands |non-pay- insisted, botiee of in hini- lear that rarded in ^lortgage ^y aimed cut out 2-3. except by such established process as an action to *««**o" foreclose. But, however few friends at court these powers had, the great delay — and perhaps expense — of foreclosure, caused solicitors frequently to hazard the insertion of a power of sale clause in the mortgage deed ; as we nuiy infer from the case of The King v. The Parish of Eding! on {b) ; in which Kj,'j«„\, Lord Kenyon, C.J. tells us that 'in mortgage deeds there is sometimes introdnced a clause that the mortgagee may repay himself by sale of the mortgaged premises without the concurrence of the mortgagor." Then he adds — somewhat vaguely, " ))ut a Court of Equity would I believe control the exercise of that power." Rdingtnii. I 3. Now there are two main classes, which the vast majority of cases concerning power I of sale naturally fall: namely, cases where it is ■ sought to establish a right to redeem, and cases where a purchaser objects to the exercise of the power as being insufficient to pass an absolute title. Under one or other of these classes of cases, the validity of sale under such a power was sure sooner or later to come into question, and definitely to be decided for or against. It w^as perhaps to be expected that, inasmuch as the purchaser must object to its validity before he complete his purchase, while generally the mortgagor may pro- fitably impeach the sale only when he has gathered the means to redeem, so the decision would likelier be given in a case of vendor and purchaser. At any rate it so happened in the eleventh year of (b) 1 East 2WH (IHOl). eHtabliBlied ri I VOWI'in OF SALK. 3. Coriler v. Baotion ^his ceiitiiry in the case of (.'order v. Mor^'aii (r), wherein is set the siniihir but iiie!i«j;rely reported case of Chiy v. Sharpe (//). To state tlie facts, William Hestorick made a mort^ai^^e to Corder eomprisinjjf a clause to the following- effect : In case default should be made, by fourteen days after payment re(|uired, it should be lawful for the l)laintiff and he was thereby expressly required of his own proper authority and without any further authority or direction from the said W. li., his heirs, executors, administrators or assi«,'ns, to make sale and dispose of * * * the mortpiged premises * * * either absolutely or conditionally * * * yneh sale or sales to be either together or in parcels by public auction or private contract. And it was covenant- ed and agreed that in case of sale W. li. would execute the conveyance ; nevertheless it was de- clared that the joining of tho said W. li. in any such sale should not in any wise be deemed essen- tial or necessary to perfect the title of the pur- chaser, the same being intended for the further satisfaction of such purchaser. Under this power, Corder sold to Morgan and the dispute arose, could he insist on specific performance as against Mor- gan without procuring the mortgagor to concur in the sale ? The Master of the Rolls granted such specific performance, his opinion being, " that the clause in the mortgage deed relied on for the defendant, empowering the plaintiff to sell, where- by the mortgagor undertook to join in the convey- vsssr (c) 18 Ves. 344 (1811). (d) 18 Ves. 346 (1802). ISTItolilCTloS. 5 eported e facts, Corder )ct : In 311 days [ for the uired of further II., his to make )rtfen tlie inort^'a^^o ^*^^f^ and the mortpi^'ec; to the benetit of which the dc- fendant, as a purchaser, was not entitled; and there was nothing in the nature of the {H)ntract l)etween the plaintirt' and his inort^'af^or, wiiicli prevented the latter K'vin^^ and the former exercisin«< sucli a power of sale of tiie premises as tiiat upon which this (juestion arose." 4. Tlius it iiappened that powers of sale [.^;',;'p^J'^-, enal)lin^^ the mort^^'i^'ee to sell, without concurrence "Imecos"'^ of tiie mortgagor, came to bejudically recognized. The same cases are authority for the necessary corollary that even if, in such powers, the mortga- gor be under covenant to his mortgagee to give the sale his concurrence (to be testified by joining in the purchase deed), yet that concurrence is so little necessary to the perfecting of title in the purchaser, that he can be compelled to specific performance without it. Kiiry. 5. The period of recognition had arrived, but that of doubt had not yet passed away ; and it took some time to accustom the older and more conservative lawyers to the intrusion of this new incident of a mortgage. As late as the year 1825, Lord Eldon opened eyes of surprise at a power of sale. " This," he says, " is an ex- tremely strong clause ; but perhaps it may be one of the many new improvements in conveyancing which make conveyancing so different from what it was when I was in practice in that part of law * * * Upon the whole I must say that this Loi'il KlfViu'ft (loul)ts. i I 6 POUER OF HALi:. ***^^'" deed seems to me of a very extraordinary kind and that there are clauses in it upon which it would be difficult to mduce a Court of Equity to act " {e). Spec, perf o! agree- C. Tolerated in Equity so far that their force mortgag°e8 was admitted in such mort<(af(es as made them with power , •. •ti- I'lii express terms, it remamed tor powers or sale to be sufficiently recognized by the judges in the Chan- cellor's Court, to allow of the specific performance of agreements for mortgages containing^ stringent sale clauses. The decision or rather conclusion 8iij.wick-of Vice-chancellor Sir John Wickson, in Ashton son s view. ' V. Corrigan (/) is pertinent, and unconsciously expresses in a single paragraph the history of the attitude of the Court of Cha'icery towards these ' improvements in conveyancing. ' It begins in doubt and uncertainty, and ends in a decree and deter- mination to take the risk. His words are, "I doubt whether a contract to execute a mortgage which the mortgagee may enforce by a sale the day after its execution, is one which the court will specifically perform ; and I know of no reported case in which such relief has been given where the right to it has been contested. However, on the authority of the cases cited from Seton on Decrees (^), I will make the decree." The following year Lord Selborne, in a case where the power of sale was likewise an immediate one, had no doubt of the propriety of making such a decree, unless the defendant was pre- pared to pay off the advance at once (//). (e) Roberts v. Bozon: see Kent, Commentaries VI, p. 147. (f) L. R. 13 Eq. 70 (1871). {g) 3rd Ed., 448, 443. (h) Hermann v. Hod^tes, L. R. Ki Eq. 18. Lord Sel- borue's decision. 01 INTRODUCTION. of :e- 7. Yet whatever sanction was given in Chan- 8«^^o°b eery to powers of sale expressly conferred, the p^^^^ f„,. courts were slow in acknowledging their business n!fum- necessity ; and, far from implying their existence when not set forth in the instrument, they re- fused to introduce them as of course in settling the ^e^S';** form of mortgages to be executed under their own^'"'"'*^ decrees. As for example in the Ontario case of McKay v. lieed (/), where specific performance having been ordered and that the purchaser should execute a mortgage, Vice-Chancellor Spragge ex- pressed his opinion that such mortgage ought not to contain any power of sale. 8. In England the prevalence of trusts of real J'^f *^;"^ °' estate with powew to mortgage has given many'""'"''*^®' occasions for the recognition of a power of sale as a si7te qua non of an ordinary mortgage deed. In Clarke v. The Royal Panopticon (/), Vice-Chancellor Sir li. T. Kindersley, saw the following difficulty or even impossibility : " How can a trustee who has not in himself any power to sell — how is it possible that he can give authority to aiT^ther to sell ? Tlie principle is, that a power to mortgage does not comprise a power of sale ; and if so, a trustee, with a power to mortgage at his discretion, cannot sell. But if the power to mortgage comprises as an inci- dent a power to sell, then this absurd consequence follows, that the trustee who has no power to sell can delegate that power to another person." But the growing use of the power of sale clause forced (0 1 Chy. Cham. '208, (1804) ; but see Selby v. CoolinK, 23 Beav. 418. (/) 8 Jur. N. H. 178(1857). I I \ 'i 11 Hi 1 I ■ I! A\ 8 POWER OF SALE. Includes the giving of mort- gages wit}i power of sale. secuons the Courts to accept this consequence ; althoii»fh in theory there might be some distinction between a direct power of sale conferred on a trustee him- self and the contingent power by him conferred on a mortgagee. For the Panopticon case was not followed either in Bridges v. Longman (/.), decided some four months later — in which Sir John llomilly thought " such a power is incident to the power to mortgage, unless expressly ex- cluded " — or in Cook v. Dawson (/). On the con- trary, the propriety of inserting the clause in mort- gages of that character is thus affirmed by Vice- Chancellor Malins (m), " I am of opinion that a power of sale is a necessary incident to a mortgage, and that when a testator says that a sum of money is to be raised by mortgage, he means it to be raised in the way in which money is ordinarily raised by mortgage, and therefore that the mortgage may contain what mortgages in general do contain, namely, a power of sale. I entirely agree with what the Master of the Rolls said in Cook v. Daw- son, that a power to mortgage includes a power to give to a mortgagee all such remedies as are proper to be given to him, so as to mortgage the estate on the best terms, and one of these remedies is a power of sale." Ontario 9. Now thcse dccisious, w^hilc ultimately rccog- Statutes . 'lower'"'' nizing that the sale clause should be in all mort- gages, could have no effect in implying its powers ^ {k) 24 Beav. 27. (/) 29 Beav. 123, 128 (m) In le Chawner's Will, L. R. 8 Eq. 570 (1869). ! ISTRODVCriON. 9 where the four corners of the executed mortgage ^^on held no such term. It remained then to amend the law so as to imply a power of sale in every mortgage ; and this the Ontario Legislature — led astray by Lord Cram worth (n) — has done in an awkward manner. The gist of our enactments (o), is (1) that on four months' default (as to principal, or six months' default as to interest), there shall be a power to sell — after certain procedings laid down in the Act— in any mortgage not contain- ing an expvesis power of sale ; (2) that, in any mortgage made in pursuance of the Short Forms Act — and containing a power of sale according to the form therein — the above power of sale may be exercised optionally ; or (8) that, where in a mortgage purporting to be made in pursuance of the Short Forms Act, there is a power of mle without notice, the mortgagee may exercise the above power of sale as if none other existed. The unremedied case is, where the mortgage does not purport to be made in pursuance of the Short Forms Act, and yet contains a power of sale that for some reason is not safely available ; or perhaps where, though the mortgage is made in pursuance of that Act, its sale clause is excluded from the benefit thereof for some other reason than the excision of provision for notice. It is not the practice in Ontario, to rely upon tl ese statutory provisions so far as to omit the power of sale from deeds. The limit of default. m m ■ • •;i! f ■ [I: > > I 'I I •i («) Cf. 2H and 24 Vic. c. 145. (Imp ) ((.) 42 Vic. c. 20 (Ont.l (Now R.8.O. 1887, c. 102, 89. J8-29) ; r,l Vic. c. 16 and P3 Vic. c. 27. 10 POWER OF SALE **9So" (^^"^' ^^ ^ix luoiiths), and the length of notice (two months), prolong thrice or four times the time ordinarily allowed hefore the property is advertised for sale. veyanci'n« ^^^' I^^ England, on the other hand, the Con- Act, iHs] veyaiicing Act, 1881 {p) seems in a large measure to have superseded express powers of sale in mort- gage deeds (r/) ; for if desired, the extensive powers conferred by that statute may be moditied by pro- visions in the deed itself. While in Ontario the power conferred by the enactments mentioned seems neither flexible in what is prescribed nor satisfactory in what is left to discretion ; and the Short Form power, as will afterwards be shown, is exceedingly liable to destruction on very slight change. It is perhaps to be regretted that the Ontario Legislature has not in this instance — adopted the labors of the Imperial Parliament. ';>) 44 and 45 Vic. c 41, (IiiTp.) s 1!( (q) Lythewood and Jarman (1890) Vol iii, DTii CHAPTER II. ;'i NECESSITY FOR POWER; TRUSTEESHIP OF iMORTGAGEE. Praptioal value of 11. The practical value of the power of sale will be manifest at once if we consider for a moment*'*""' the position of the mortgagee of a property insutli- cient in value to secure the debt. If he be with- out power of sale, he may iliscover the insufh- ciency of his security by foreclosing and then selling. If he should then bring action for the deficiency, he will be restrained by injunction (a) ; for it is a rule that any dealing with the mort- gaged property so as to render it impossible to restore the property on full payment, precludes an action on the covenant (b) ; a rule, however, which lias no application to dealings under power of sale (c). 12. But besides the business necessity of the .^^{.'^^'^^[J'' power, it remains to explains why it is necessary ^"' *'"'**" that the legal owner of a property should hold a special authority to part wdth that property at his need. In other words, we nmst emphasize the (a) Perry v. Barker, 8 Ves. jV27 ; see also Lockhart v. Hardy, 9 Beav. 349. (b) Palmer v. Hendrie, 27 Beav. 349. (i-) Willes V. Lavett, 1 DeG. it Sin. 392 ; sea also Gowland v. Garbutt 13 Gr. 578. ,1 1 1 "r ij { f -ii i ii'f ^mmmmmrmm 12 POWER OF SALE. *w^3°" clistinction that these powers were fincl are intended to extinj^juish a purely e(juitable interest, but that at eonnnon law they we^" (juite unnecessary. This is expressed clearly — though with something of vague contempt for equitable rights — by Chief Justice Richards in Xesbitt v. Kice (^7), as follows: "If the premises were mortgaged in fee to M. there was no power of sale required to transfer the legal estate to T. nor from him to P. There may have been some e(]uitable interest left in the original mortgagor which would make it desirable to have a power of sale in the mortgage and to be able to exercise it. But as far as the legal rights of tlie parties are concerned, which we have to deal witli, if the legal estate passed by the mortgage, the person holding that estate could undoubtedly convey it." Ihiv^of' l*"^- ^ow from this entirely equitable necessity Mort-asne. j^^, tliese powers has arisen that strict application of certain equitable doctrines — chiefly relating to the trusteeship of the mortgagee — which has given a certain undeserved intricacy to this branch of mortgage law. The treatment of a mortgagee as a quasi-trustee for the mortgagor, while it has roughly fulfilled certain ends of justice, has by no means been a wholly felicitous mode of viewing the respective rights of debtor and creditor in a mortgage transaction. Undoubtedly mortgage law has been enriched, if not clarified, by the very numerous decisions under the head of Trust, and the law of mortgage has reacted on its adopted parent : id) 14 U. C. C. P. 40!) (an ejectment case). NEC ESS IT Y FOR I'OWKli, ETC. 13 for instance, we tind Chancellor Spra<). But it seems that he does not become a trustee of this surplus until he has actually received it (/.' SAl.l<:. ■•otloas tilla of trusteeship — when we try to locate it — goes out into the nothingnesH expressed hy the words "bare trustee." uon'of 11). To (luote again from that great case of truuteeHhip i i i V- i iryt*'""'' ^h<>l^'»<>i»deley v. Chnton {t). " The position is to be received with considerable ([ualifications, as will appear by examining what is the true char- acter of a mortgagee, and how he is considered in a Court of Equity. Ijord Mansfield, adverting to the comparisons iiuide in respect to mortgages, has, I think, said tliere is nothing so unlike as a sinnle and nothing more apt to mislead * * * 'YXm^^ relations of vendor and purchaser, of [)rincipal and bailiff, of landlord and tenant, of debtor and creditor^ trustee and ceHtui ). Exct'i-tioiiK 22. There is perhaps a single exception to the necessity of default as a .sine (/ua iion of good title in a purchaser under power, and that arises in the (a) Doe d. Mowat v. Smith, H [I. C. R. IH'.t. {b) Jones on Mortj^aj^es, 4tli Kd. 1.S81. EXERCISE OF POWER. 21 case of an innocent purchaser protected by a strin- ^'ent non-enquiry clause (c). The default, moreover, must be a default in terms of the instrument creating the mortgage. Thus, if there be a particu- lar place designated as the place for payment, the mortgage creditor must be there to receive payment, before he take proceedings as on a default. As says Sheppard in his Touchstone (d): "In cases where a place is set down for the doing of the thing con- tained in the condition, there it nuist always be done at that place unless by some agreement made between the parties afterwards, another place be appointed ; otherwise the condition is not per- lormed and the parties are not bound to attend in any other place. But in cases where there is no place set down lor the doing of the thing contained in the condition, if the thing to be done be a cor- poral service as to pay money, or any such like thing, the party that is to do it nnist at his peril seek out for the person to whom it is to be done." Sections 22-23. Acoelera- ti III. 28. Now there might be a default as to a por- tion of the moneys secured; and yet it would be extremely inconvenient to be obliged to sell subject to the moneys still payable, or to sell such portion of the land as would pay off the moneys already accrued and in default, or to be obliged to retain a large amount of the purchase money to cover the i {!-■) See Dicker v. Aii^^erstein, L. U. 8 Cli. D. (i02 ; see ('liiip. VII. infra. (il) V. IHli, cited ,itli approval by Nortli, .1., in Thome v. City Rice ^lillR, L. U. 40Cli. D. 3o7. " 22 POWER OF SALE. Section 23. siirns not yet accrued. So it has come to be the universal practice in mortgages with power of sale to insert also a clause providing that m case of default in payment of any portion of principal or interest the whole sum secured shall become due. While there may be good authority for the statement that such a clause is not in all cases an absolute necessity in order to apply the pur- chase money on unaccrued principal [e), yet the right to so apply, can scarcely be considered a prima facie right in the absence of sucli clause. This ' acceleration ' clause lias been deemed not to be the nature of a penalty but to be a term fixing the limit of credit for the payment of the princi- pal (f). It is optional with the mortgagee only to put it in force — the debtor not being at liberty, through it, to tender after default the whole amount secured witliout notice or further interest. But the mortgagee having elected to consider the whole sum as due will be bound by his election {(j) ; of which election however he need not acquaint the mortgagor by any formal intimation (//). Where no such clause exists there is some danger in attempting to call in the whole debt by the notice of sale, although the sale would not be impeachable on that account, unless that attempt were made fraudulently, or caused actual injury to the mort- gagor (/). (e) Jonea 4th Ed. 1!)3«. (f) Case V. Burton, 1<.» U. C. R. .540 ; see also Tvler v. Hinton, 3 A. R. r>H, 7 P. R. 1»0; Gemmel v. Burn, 7 P. R. 381 and Seaton v. Twyford, L. R. II Eq o91. (. More important ditliculties are apt to arise ntatuto of ' '■ Liinita- under the Statute of Limitations. From II. S. (). '*'>"*• 1887, c. Ill, ss. 22, 2:3, may be deduced the time limit of the mortgagee's right to exercise his power of sale ; and that limit, in the absence of liis possession, or of intermediate payment or a?'knowledgment, would be ten years "after a present right to recover" the monies charged on the land had "accrued to some person capable of giving a discharge." A discussion of this matter will be found in the interesting case of Cameron v. Walker (w), in which particular case it was decided that the mortgagor was barred by the statute, but t ■Hj (j) 2 Jur. N. S. rt-M. {k) Curling v. Shuttleworth «! Bing. 121. {/) Stockpole V. RobbiiiB, 47 Barb. (N. Y.) 212. (m) 19 O. K. 212. 24 POWER OF SALE, Capacity to exercise powi'i'. *28-*27" ^^^ purchaser under power was not ; for the statute commences to run against the purchaser under the power of sale when he so acquires his- title (??), and against the mortgagor when he loses possession (o). 26. This may be the proper place to note that the power continues as long as any root or branch of the debt remains ; and the payment of principal and interest, without also the costs already incurred, of proceedings to sell, will not suffice to annul the power, for these costs of themselves form a suffi- cient charge on the land to authorize a sale under the power (p) ; although indeed, where the costs are unascertained and the security ample, the court may restrain the proceedings (q). 27. There must, of course, be the usual "capacity" in the party exercising the power, but it is scarcely necessary to add a chapter to this book on the "capacity of parties" which is ;i thing that has been (juite well digested in a great many learned works. It may not be amiss, how- ever, to make a few special observations as to this topic. The party personally exercising the power ought not to be under disability, as, for instance, infancy (y); but, seemingly, the provisions of (;/) 7/^, (iuotin« Heath v. Put;h, L. R. 6 Q. B. D. 31."., Doe d. Baddle- ley V. Masaey, 17 Q. B. :{73. (()) See further in Chap. IX. as to arrears of interest. (p) Thompson v. Hohnan, 28 Gr. 35. ((/) Jenkins v. Jones, 2 (Hff. !»!» ; further see H. S. 0. 1887, c. 102; s. 31. (r) Burnet v. Denniston, .'5 Johns. N. Y. Chy. 3"j. ■m EXERCISE OF POWER. 25 27-28. H. S. 0. 1887, c. 137 (s), are sufficiently liberal to »«»««" enable an infant, on the application of his iruardian or next friend, to make a valid sale and conveyance to the purchaser. The disability of lunacy presents a similar difficulty. In one English case (t), the court directed the committee of the lunatic to sell but declined to add a direction as to the conret/ance to the purchaser, leaving the transfer of the legal estate to be dealt with under the Trustee Act, 1H50. But our statute R. S. O. 1887, c. 54, s. 14, makes, to all appearance, a sufficient provision for applications to the Court by the committee of a lunatic mortgagee for authority to convey the lands comprised in his security. !W .fl'H to exercise 28. It is essential also that tlie proper party, {f^^[y i.e. the person in whom is vested both the legal power estate and the power of sale itself should execute that power. As where there is a joint power vested in two or more mortgagees, all should concur in its execution (//). There are several intricacies that arise out of the assignment or partial assignment of tlie mortgage in cases where the power is limited to the mortgagee and his assigns. Thus a merely equitable assignment will not pass the power to the assignee (/•)• — An assignment, inoperative in law, leaves the power (.s) Sees. :{, 4 ct iteq. (0 III re Harwoods L. R. 3.5 Ch. D. 470. (m) Wilson V, Troup. 2 Cow N. Y. li»'). (r) .loiies, Itli Ed. 178i>. 1,1 I ; t ■■■ 26 POWER OF SALE. swstion ii^ the mortgagee (iv). More specifically the " iriortgagee, as long as the mortgage is retained by him, — the assignee, when the mortgage is wholly assigned to him — is the proper party (x). So the legal holder of the security may exercise it either for himself or for another — as, for in- stance, it may he exercised by an assignee for the purpose of cancelling the debt (//). But if the niortgage is not absolutely, or if it ie. merely partially or collar.prally assigned, both mortgagee and assign* e s' .^'. join in the proceedings (. It will i)erliaps serve a useful purpose if ^''"J"'* we preface the discussion of the various powers by g ,ij;.t,.„;;7 a few of the special rules that have been applied' to their interpretation. The leading principle' in the construction of these powers is, in the absence of statutory inipli- ) Except in some of the United States (especially where trust deeds are in voj^ue) ; see Wilkins v. iNIcOehie (Geor}j;ia) 13 ■. K. Hi; Johnson v. Johnson (S. V.) 8 S. E. fiOH ; liiichanan v. JMunro, 2'2 Texas {<•) Jones 4th Ed. 17i)B. {d) Enckint,' v. Simmons, '28 AVis. '27'2 ; cf. Provost v. Roediger, 32 N. Y. S. R. 1101. (<') Bartlett v. Jul!, '2H Gr. 110. ()£ course the infancy of the orij^inal mortgagor might affect the mortgage contract ; mortgagor is here used in a general sense. (f) Gordon v. Ross, 11 Gr. 1'21. (//) Jones. 4th ed. ISOO. (//) See Boyd v. Petrie, L. R. 7 Ch. i, cited in Kent's Conim, IV. 147. ■r.:^ ii*' H-1 POWKlt OF SALE. Sections tliut the iiiort'^a'^oi' should conduct the sale — himself (r). But, as it is not safe in the nature of things to put the security in the dehtor's hands that he may sell the estate discluirged of incum- hrance, so the courts would prefer, as the next fairest plan, that some independent party, hound to look e(iually to the interests of hoth, sliould have the conduct of the sale. UiNiidviiiit M). However, in reality, it is found, on the side of the mortgagor, that the trustee generally proves more expensive than the simple mortgagee, to the mortgaged estate, whicli is made poorer for the luxury of his independence, and that proceedings in Ecpiity are far connuoner for all his interven- tion. On the side of the trustee himself there is a perilous responsihility, — which he may unwittingly take on himself by his interference without formally accepting the trust {iv), — a liability to be mulcted for any failure in due diligence. If he releases part of the security, or releases a purchaser from his bid, he is called on to make good a breach of trust (./•). He is bound to keep all his cestuis qui tru.Hfcut informed of his operations; and his action is often restrainable by injunction, where the mortgagee, with power, would be given free hand (//). On the side of the mortgagee — he is vexed by the trustee alive or dead. There are (r) See Woolsey v. Colmar, L. R. 21 Ch. D. 169. {w) Jones, 4th ed. 1780. {x) Sherwood v. Saxton, <)3 Mo. 78. ((/) Anon. () Madd. 10. Moreover, he has no power to appoint an agent to sell for him. Fuller v. O'Neil, 6 S. W. 181. V.lUroC^ FORMS OF. 83 (lualins that troiil)le the over-conscientious third "•S""?" party which perhaps will not be quieted except by an action by the mort^^a^^ee to enforce the trust. And when deatli removes or insDlvencv makes dangerous the depositary of the power, then for the ippointment of another there is needed the con- currence of the mort^^a^'or (z). Moreover, the value of a mort^a^e remedy depends greatly on its \v(jrking in with all the concurrent remedies ; and by itself, likr a stick drawn from a faggot, loses its efliiciency. Thus the sale power isolated in a trustee will, in the absence of stipulation, lack the support of the power of entry on and taking posses- sion of tlie land that is to be sold. At any rate, the mortgagee-public, having it in their own powei to dictate the terms on which they will advance and oan tlieir moneys, have evidently preferred to jep in their own hands a remedy that, whenever the occasion arises, they may, without delay, take advantage of and put in execution. li' ii (8) Power of Attorneij. 37. Another method, not unlike the trust deed, is to have the mortgagor execute as of even date with the mortgage, a separate power of attorney — generally to a third party — but permissibly to the mortgagee himself. Such a powder is effective toonerauo.. cut off the equity of redemption (a) ; and being attorae" ° given for consideration is, therefore, irrevocable {z) Ex. p. Orgill 2 Dea & Ch. 413. {a) Balbridge v. Walton, 1 Mo, 520. H.P.8. — 3 i :J4 I'OWEU OF s.ii.i:. Sections dunno' the lit'etiiiie of the coiistitueiit, and iiiulei' the 37"3o» " provisions of our statute, J^. S. (). 1(S87, e. 07, may, by express provision, be made to stand ^^ood after its constituent's decease. It is to be noticed also that all proceedings and deeds taken and <4iven l)v a mortgagee under such a power of attorney are the acts and grants of the mortgagor himself, and not of the mortgagee (//). This method hy power of attorney is so little used in Ontario as a mortgage- remedy, that it is scarcely of interest save as a legal curiositv. ]'.t'llSOI (4) Ajijxirt'iitl// Ah-'idhitr Di'cds. 3S. There are certain anomalous cases where an apparently absolute conveyance has been gi\en whicli, however, E(piity is pleased to construe into a mortga f/ie lund ; and S., after giving a month's notice, migiit sell and, after deducting tlu' amount due, pay to the defendant any surplus. S. sold to the plaintiff, wliose (h'ed recited S. as owner in fee. It was held that the conveyance to the i)laintitit' was open to objection {b) Speer v. Hmliluck, M \\\. V.V.) ((•) 'Jl r. ('. H. U.{ l!iu ojec'tineiit cu'^e). VAJllOfS I'OIIMS ."• ;{5 as heiuf^ executed by S. as owner in fee, while the ^^^^ agreement, though it recited his ownership, con- \eyed no estate to S. from the defendant, but was at most only a mortgage with power of sale ; and that it was difficult to give it even that character. ;}'.). Now a mortgage by metamorphosis such {}""^J,o,.;,f as the one just mentioned, presents the hazard tliat the power of sale stipulated for may be — as in that case — doubted l)y the court; and yet being in sort an express power, and there being, of course, no mention of the Short Form Act its \v«'akness is not relieved by the option of the implied statutory power [cc.) Of course, to avoid the purchase, the purchaser from an apparently al)solute owner nmst have liad some notice — through the terms of the agreement or convey- ance or otherwise — that the vendor was in I'eality a mortgagee (d). What exactly would be sufficient notice is a matter to be decided for each <-ase, but that tliere is a limit of vagueness we mav know from the decision that a casual conver- sation in a bar-room fifteen years before the bill to redeem was not good and sufficit>ut notice [e], (5) Short h'onii }[()rf(/af/<'s. 40. The Power of Sale under the Short Form*'"'"' "■ Act IJ.S.O. lH87,c. 107 (clause 14 in the Schedule), "Pro\ided that the said ujortgagee on default of payment for months may on (ci'l See sec. !t, supra. (./) c;f. Peterkin v. McFiirliuiL' ',i \. H. Vl'.K (f) Clarke v. Little r, (Jr. :iti;i. i If t I lli^^ \-\ }ai' I ; I :W.\ m POWER OF SALE. Sections 40-41. Statutory (liivctioiiH. notice enter on and lease or sell the said lands," is the most commonly in use in Ontario, either in the integrity of the statutory words, or with more or less perilous modifications and exceptions. The apparently simple directions prefixed to tlie columns of the forms — and constituted a part of the Act itself by section 5 — are as follows : " 1. Parties wlio use any of the forms in the first column of this Schedule may substitute for the words "mortgagor" or "mortgagors" or "mort- gagee" or "mortgagees" any name or names; and in every such case corresponding substitutions sliall be taken to be made in the corresponding forms in the second colunm. "2. Such parties may substitute the feminine gender for the masculine, or the plural number for the singular, in any of the forms in the first colunui of the Schedule ; and correspondingchanges shall be taken to be made in the corresponding forms in the second column. " 3. Such parties may introduce into, or annex to any of the forms in the first column, any express exceptions from or other express qualifications the»"cot respectively; and the like exceptions or (puilifications shall be taken to be made from or in the corresponding forms in the second column." "Olio iMontli. " A. Interjirefation. 41. It would seem reasonable that on a liberal construction of the second of the above directions, the phrahe "one month" might be substituted al s, VAIUOrs FORMS OF. 37 -months," in the condensed clause, for if section 41. for "- the phiral may be substituted for the singular, it is no great assumption to substitute the singular for the plural. Nevertheless the validity as a short form of a power exercisable on one month's default has niore than once been tried in our courts, and cannot now be considered safely estab- lished. In lie Green v. Artkin (/), where the assignee of a mortgage was selling luider power, Mr. Justice Ferguson has held that ' the variation of "month" for "months" is not a material varia- tion. The spirit of the Act is not violated by such an alteration. 1 therefore think that the vendor can make a good title and the purchaser nnist accept it.' The same difficulty again arose in Barry v. Anderson (7), in which (^sler ^md^^'^'/j^y McLennan, J J. A., seem to have disregarded the point as of no consequence; while on the other hand Mr. Justice Burton laid on it con- siderable stress, and reached the conclusion that the effect of limiting "the default to one month insfead of two or more inonths, as would seem to be necessary if they desire to avail themselves of the Short Form .\ct," is that the proviso lias no operation under the Act, and is therefore personal to the mortgagee. Now, whether it will ever be judicially determined that the "one month" power is outside the statute may be doubted, and our courts will probably hesitate before they cripple that clause which is by far (0 UO. R. 6'»7. ((/) 18 A. H. 247. )' I b \ \ V\ i|: S8 POU'KIi OF SALE. secttons j^j^g most 00111111011 oxpedieiifc in Ontario, jiiid to which our conveyancers are hecoming so gen- erally accustomed as often to insert the clause as a matter of habit, in mortgages where no power at all has been stipulated for. Tliiid direction. 42. The third of the Short Form directions, however, lias given the most scope for judicial distinctions. For the judges have been divided — and apparently irreconcilably— according to two opposite theories ; while fre([uently the convey- ancer concerning whose handiwork they differ, lias by them been complained of as having an utter disregard of the Act in pursuance whereof lie has entitled his deed. The one theory -and seemingly much the more favored one with tlie courts — is for a \erv strict alignment of the power, with th?it to be iilled in according to the Act. Our leading case on /{(■(iiiciiiistthis point is Be (Tilcliri!-.t v. Island (//), in which ami tslaiicl, *- the arraigned clause was, '' Provided that the said mortgagee on default of payment for two months, iiuifi trithoitt t/ir/iu/ iicha manner as to make it indifferent whether the power was limited to the actual words used or took the heiu'tit of the extended clause. But a little later, in Clark v. Harvevi/) the clause " Provided y"'!^^ that the mortf>'af^ees on default for one day, may without any notic<' enter on and lease or sell said lands " was the suhject of dispute. At the trial Chief Justice Sir 'riiomas (ialt, attempted to (listin<^iiisli this case from that of Gilchrist v. Island, on the .uronnd that in the latter the power was exercised hy an assi^'iiee of the mort<^age. But on ap])eal to the Divisional Court, Mr Justice Hose ipp th licith took the occasion to dissent— somewhat ex]) from the reasoning in /»'r (lilchrist and Island, wliilc Mr. Justice Street no less explicitly adhered to the close construction. The theory of the Act adopted by the former was expressed as follows : — " Giving the matter mv best attention I am unable to i-ki H\ h i \-i CI iti o. u. \r, ^j\ i(> (). U. ir.'.i. It I 40 I'OWEll OF SALE. ^43*44*' distinguish the effect of excepting anytiiing from the proviso and abolishing the thing excepted. If excepted from the clause it is of course no longer there, and therefore is abolished so far as that '^lause is concerned. But, without desiring to enter into any verbal criticisms, I am wholly unable to give effect to the language of the Act above quoted, if one is not at liberty to except from the proviso any requirement therein contained. To except is to exclude ; and it seems to me that if the parties agree so to do they are empowered by the Act to exclude or except from the power the provision re([uiring any notice just as they might ' annex to ' the form any such exception." On the other hand the stricter view of the matter is elaborately wrought out in the opinion of Mr. Justice Street, the ett'ect of it being — us far as fairly representable in brief — that as the words in the second colunm of the schedule go so far hei/ond the natural meaning of those in the first column therefore the latter nuist be taken to l)e .sijinbola, as if the legislature were to say, .r/y - (clause 14 see '2ad column) ; and if the legislature choose to attribute to .r/y a certain meaning you are not at liberty to leave out // and then attribute to x the meaning of .///. Mfttbc- lllHticill tlioorv 44. Now, laying aside all memory of those e(jua- tions where /y = unity, and therefore may safely be eliminated, it would have been interesting had the mortgagee's solicitor instead of using tlie grafted form of power, quoted in i?f^ Crilchrist and Island, mM VARIOUS FORMS OF. 41 availed himself of the strict form of the schedule sections and inserted the word " no " before the word notice. ' For then it would have been necessary to insist on the equitable reason as to the oppressive aboli- tion of a term in the form, rather than to build on the theory that the symbolical requirements had not l)een complied with. Unless indeed we could carry our mathematics a step further into law, and dis(pialify the clause on the ground that certain fallacious proofs by aid of the zero value are not admissible in algebra ; and thus end with some legal theory of indeterminate equations. If. m ni iii 45. It seems on the whole to be very unsafe to make any change in the interior of the clause — further than to make substitutions for the word " mortgagee " and, if we are to abide by the view of Mr. Justice Street (A), who instances a few alterations that might be made in some of the short form terms, only very insignificant internal (Iiialitications are admissible by the statutory power. Xo more does it appear to be at all a matter of course to add to the clause and import into the additions the advantage of the extended form in the second column. In Barry v. Anderson, above cited, (/), following the modified clause, already quoted were these additions, " And provided also, that in case default be made in payment of either principal or interest for two months after ArMitioiiK to fiinii. Harry v. Anilerson i':^ \\l (A) Clark v. Harvey, 1(J O. R. 15<». [I) Barry v. Anderson, 18 A. U. 249 ; see ji 41, supra. 42 raW'EH or SALE. Vet- Oslfi J. A. Section .,,,y pf^ynK^nt of eitliei' falls due, the said power of ~~ sale and entry may l)e aeted upon without any notice. And also that any contract of sale made undei" the said power may be varied or rescinded. And also that the said mortt»agees, their heirs, executors, administrators, and assi<(ns, nuiy buy in and resell without being res})()nsible for any loss or deticiency on resale." Wiiile the majority of the court considered these additions as within Die v,Hnit..n.sc()i)e of the Act, ^Ir. .Justice Burton dissented •J. A. ' ' and maintained that tiiey must be strictly con- stiued by themselves. On the other hand, the line of reasoning adopted by Mr. Justice Osier is as follows: — " This clause (referring to the additions) is to be read just as if the previous clause had been set forth in its extended forui, since that (dause is, as I hold, in exact compliance with the Act, and is ttieiefore, to be construed as if it had been in the form of words in column two of the schedule, the extended form. All the terms of that power therefore, except, as varied by the terms of the second 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. The case appears to me distinguishable from 7)^^^ Gilchrist and [sland and Clark v. Harvey where the mort- gages did not contain the symbolical form given in colunm one of the Schedule, and it therefore became impossible to revert to the exponential form in column two." r A It IOCS I'oiiMs OF \:\ MS. Xow thouL'h it may well ho that tlie ^*?**<'°8 '^ • 46-47. inventor of the Sliort Forms Acts, jis well as mohk" AttMnrt t.. Inter critics ol' his work (///), had some the()rv Jrim'h'u.. of e(|UHtions in his mind, still it is (|nite prohnhle that our lef»"islators intended a strict adherence to the schednlar form as a protection to tiie party more easily oppressed; and that, as in the •statutory conditions' in the Insurance Act— t liey intended any variations from the j)i{'scrihed t'orin to be clearly notified to the weaker party — in tin's case the mortgagor. So that the phrases " express exceptions " and •■(>x})ress (pialifications" may he taken to involve tile meaning that the intention of the parties, at niice to give the benefit of the hirge powers of the extended form, and also to deviate from that form for tlie further advantage of the mortgagee, must lie very clearly evidenced by tlie language used. At any rate it is to he hoped that some construc- tion of the Act will at length be agreed upon, which will permit the application of such ecpiitable grounds as the oppressiveness of a power i;/), with- out finding it necessary to make the rights of rlie parties to a very conimon business transaction ilie sport of an algebraic entertaimnent. B. Effects of Hxchisioii. 47. (1) Assigns of the tnort(jaf/ee. — For the better comprehension of the hardship of being shut out from the Act there is here inserted a short discussion of the rights of assigns of the mortgagee. {Ill) Incluflin{{ Dart V. iV: p. otli Ed 504. The Short Form Acts were I'nitrived by Lord Brouj'ham in lH4i) and 184»>. (;)) See lie Gilchrist and Ishmd S iixuprn. m I iM' [M! k '■ i i li !t 1 " 1 h ■i 1 1 J 44 vow Eli OF SALE. Sections 47-48. One of tlie eurliest stmins put upon powers of sale — vvhicli all judges have (concurred in rigidly construing — was the attempt to exercise them hy the assigns of the mortgagee, without special j)r()vision in that regard. But it has heen repeat- edly held that sucli ])()wers nuist he expressly reserved to them ; otherwise the mere transfer of the mortgagee's estate does not of itself carry the power of sale, which, according to the strict con- struction, is personal to the mortgagee and may he exercised hy him, and none other (o). Scipe of " llSsigllH.' 48. Xow the use of the word "assigns" in limiting tlie power of sale is taken to evidence the intention of the parties to couple the power and the security ip). So great is the scope and capac- ity of this word " assigns " that under its shelter not only the holder of the security hy the usual method of assignment of mortgage, hut sev(^ral other classes of persons, take the henetit of the power. Thus the administrators of an intestate mortgagee or the administrators of an assignee of the mortgage {(j) are sufficient assigns — i.e.. assigns by operation of law. Moreover, a de- visee, or assign by will, is within the meaning of the word (;•). Ijikewise it is true that if there (o) Bythewood andJai'inan, Conveyancing, vol. iii., (i'.»0; Brudford v. Bulfield, 2 Sim. 264. (N.B. — The ri}»ht8 of assigns to give receipts will not be taken as equivalent to and including the right to exercise tht power of sale). (/>) Lewin on Trusts, Stli Ed. p. (103. ((/) Saloway v. Strawbridge, 1 Jur. N. S. lli)4. ()•) Cooke V. Crawfor.l, 18 Him. 91. But see also Osborne v. Bowlett. L. W. IH Chy. D. 774 ; lie Morton v. Hallett, L. W. 15 Ch. D. 148. v. I mors Forms of. 45 I),, ii iii()rt^}i^'(> to two persons — securing- a joint ^^J^^* idviiiict', iind the i)ower of sale be niade to them, their heirs and assij^ns one (lyin;^% the survivor i!i;i\ act upon tlu' power (s). 40. There are, however, two exceptions to tlie J'JoJ",h'' rule that the assi;;!! cannot sell in the absence of -,11(1) provision as mentioned. Tlie first is, if llic iiiort^^a^^or concui" in an assi;^mment of niort- ii:a,m' whicli purj)orts to make over the benefit of the provisions therein contained (/). And tlie second is the case of trustees in whom is vested a iii()rt<^ajj;e estate. For, thougli fornierly the courts applied the same close construction to tlieir exercise of these powers (//), yet by statute (r) the i)ow(H-s of new trustees are made co-equal with those of their predecessors in office. A new trustee is to "have the same powers, authorities and discretions, and shall in all respects act as if he had orij^inally been nominated a trustee by the (Ict'd, will, or other instrument creating the trust." The position of a trustee-mortgagee under this Act was debated in i^^- Gilmour and White {w). The ';.'wV,i't'... facts were, that Robert Gilmour was made trustee of the Crookshank Estate, in Toronto, in place of Stephen Heward and \V. G. Schreiber, the former trustees. The powder of sale in a mortgage to them, which Gilmour attempted to exercise, was such as !! i 1 ( -il i i. ^*h4 M i ■■! ■ It.' (.») Hind V. Poole, 1 K. A J. 383; Lewiii on Trusts, 8th Ed.. 431. (0 Young V. Roberts, lH Beav. 558. (i<) Townsend v. Wilson, 1 B. & Al. C08. lil R. S. O. 1887, c. 110,8.3. H) UO. R. 094. IP ■u\ iDWIJt or SALE. ^w'S" "*'^ ^" "'^•' ^'''*' '■'W'i't of ^''It' t-o the assigns of tlio iiiort^'ii^cc (./ ). Hilt Mr. .Justice rroudt'oot allowed its exercise on this ^n'omul : " 'I'liere is no ((iics- tioii tliat tlie ori^Miial trustees could liasc sold uuder the power of sale, and the new trustee steps into their i)lace and may exercise all the powers for realizing" the trust ])r()])erty that they had, not as an assi«;n of the estate hut as if" a))pointed a trustee by the deed creatiii';' the trust." \p|lllCll- tiuiis. 50. All()wiii<^', therefore, for these exce[)tioiis the rule re^ardin^' assi<^iis is as stated. Now, the a])plicati()n of it to cases within and without the Short Form Act is (or was) very simple. The form of })ower-chuise in the first column of the Schedule makes no iiK'ntioii of the assij^us of the mortgagee, wJiile that in the second cohimn reser\'es the power to the '* mortgagee, his heirs, executors, administrators or assigns." Ff then tlie attem})t to use the form in the first column he a failure in the eyes of the court, the probable result is, that neither having the benefit of the extended form, nor having taken 'bought to make the neces- sary reservation, the conveyancer will have drawn a power not available to the assigns of the mortgagee. This was the kernel of lie (Tilchrist and Island (//) where no resort being permitted to the Act, the assignee of the mortgage was short of his power — which was construed as persona' the mortgagee. The same right of assignees \ (.c) Heiii" within the scojie of /iV Clilclirist and Island. See su})ra i 42. (//) See miprii S 42. I .iiuoi s I DkMs or. i' u ;it stake ill J^iiirv \. Andorsoii (:) wlieii. tortimatclv ^'H^^!^ \'nv tli(.' vt'iulors iiiidcr power, lliev were allowid — - uilliin tlio sanctuary of the Act. This statu of the l;i\v lias \)L'vu so far luoditicd hy sLatutc as to ;4ive tlu- assigns tlio honc'tit of I{. S. (). ISHT, c. lO-J, ,(11(1 to limit the time for (luestioiiing a sale hy an •i^siiiiiee to within two vears after sale ia]. ■')[. (2) Xeci'ssifii for I'jiifr//. A less successful attempt to liamjun' mortgngees in the exercise of such powers as have the inisf'ortiiiu} to hu outside the henetitofthe Act, has heen hased on the use of the words "enter on and lease or sidl the said lands" or similar phrases. The dispute is wht'ther entry and }){)ssession thus hecome imlispensahle to the due exercise of the ))ower. I'luh-r the Short Forms Act, the option "whether in or out ol possession " is express, while the ahove |)lirase found in tlie form in the tirst schedule is, at ast, amhiu'uous Tl le i)( oint 1 las more tl lan once heeii taken, when the strict construction holds, r.'/., in liritish Canadian v. Ray {/>) where, how- r. ever, the vendors having made entry hefore sale, the ohjection accordingly profited nothing Ciiim- ilhni V. Itii V. Mr. •loiies, in the third edition of his extensive rk, has said " Under a power in default \\o of payment to enter and take possession of premises immediately and sell and dispose of the same, a sale cannot he made without a pre- \ioi entry and taking possession, or at least a : u • l M u) See siiprti ^ tl, 41. ('(( r.l v. 1-. ir>. <><. 4, ". ; iui v. c. 27, h. 1. /'I It; I). H. 1" See § 43 supra i 1. 4S POWEli OF SAI.i:. Sections S1-B3. Anderson V. HaiiiiH. demand for possession and a refusal," (c). But, ill the opinion of Chief Justice Sir Thomas Gait, in Clark v. Harvey (^/), the authority cited for that proposition ie) does not l)ear it out. Nor does the case of ('lark v. Harvey itself make an end to the matter ; for, on appeal to the ])ivisional Court, the two judges, who heard the case,' took irrecon- cilable views. Once again, the same cpiestion was mooted in Anderson v. Hanna ( /"), where Mr. Justice l^ohertson, citing a prior decision of his own in the unreported case of Pottrutt' v. Tweedle, construed this ambiguous clause as not requiring entry to he made before sale. Attonipt rtml trui' liriiicii)lt' to ■~)'l. On principle, it would seem that, according to the strict construction, it would be proper, or at least consistent, to construe the clause in favor of the necessity of entry, if there be reason to believe that such entry would, in some way, be towards the advantage of the mortgagor; but that, in the absence of any possible advantage to him it would not be proper or reasonable so to construe it, merely to impose a troublesome condition on his creditor. In practice, there is no doubt whatever, that the the more liberal view is the one that would meet most favor with conveyancers and mortgagees. At any late, as it appears from the same Mr. (<•) JoncH on JVIortgiiKes, 3rci etl. 1782, quoted iii ("lark v. Harvey [iiifrn). But see 4th ed. same section. ((/) i« o. R. nu. (e) Itoarty v. Mitchell. 7 Grivy (Mass.) 243 (/) 1<» O. B. r,H. See also Halpin v. Halpin (Miss.) 8 So. 7.S9 ; Tyler v. Herrinji, t)7 Miss. KiU. trim til VARIOUS FORMS OF. 49 Jones (g), that such entry may be made at the ^^^ time and for the purpose of the sale, to insist on its performance — which would certainly contribute to swell the costs of the proceedings — would truly be a far-fetched charity towards the mortgagor. C. Siifffffsfions in draiving powern according to Short Fonns Act : — 53. It has been reconnnendcd by Mr. E. D. Armour (//) "that the power should be reserved to the personal representatives of the mortgagee : and that provision should be made for giving notice to the personal representative of tlie mort- gagor, or, if no personal representative shall be ap})ointed within a reasonable time after death of the mortgagor, then, that the power should be exercisable without notice " (/). The not " very inartificial " reasoning on which lie bases the above suggestions will be found on pages 272, 204, and 2(v"> of his work. I 1 i, ' i tlDllS. 54 It is advisable that the form in coluiim avuj.i one of the sciiedule be tampered witii as little asH'm'.Vti'ra possible. Tlie better plan is to })ut it in as entire as tlie case permits, and tlieii to annex by furtliei' clauses tlie desired modirtcations. Wherever there is jiny doubt as to the applical)ility of the Act to these added clauses, it is proper eitlier speciticfilly (./) 4th el. ii 17xi, citing Cranston v. (jriiie, '.t7 Mass. tV.t. (/() Titles to Huiil Jlstate in Ontario, p. 'H>'>. ii) If tiitfre be no person in existence to whom uiuler the terms of tlie power notice Hhoiild he j,'iven, the power cannot hfe.xerciseii: I'.irkin son V. Hiinbury, 1 Or iV Sm, 143; 2 L. K, H. L. 1. H.l'.S. — 4 50 row Eli OF SALK. Section M. to recite the intention of the parties to take advantage of the extended form, or, as is the more elegant mode, to refer back unmistakably to some of the phraseology or terms of that form. An instance of the latter method is such a clause as the following: " Provided further that such notice of sale may be effectually given either in the man- ner aforemid, or by leaving the same with a grown-up person, etc." There being no mode of service mentioned in the abbreviated form, recourse is, as of necessity, had to its more explicit partner. w, r I chapti:k v. NOTICE. (A) XoTicK Gknkhally. />5. A iiotilication to all or any of the parties interested in the e((nity of redemption, that the power will he acted on — though usually provided for in the instrument, and usually given in any event — is not an essential of every power of sale. Nothing is better estahlished than the law laid down by Mr. .Justice Street in British Canadian v. Hay {(1), that 'a })ower to sell without any notice after a certain period of default, is as good as one which re(piires a notice to be given.' It is no less certain, however, that such powers are deemed oppressive, and, consecpiently, find snudl favor with the courts (h). This vi<'W of th(> nuitter has been given stress in some cases where the mortgage was from a (dient to his solicitor, in which the insertion, without explanation to the client, of such a (dause authorizing sale without notice, was adjudged a (,.) 10 o. R. 15. {h) //i' CiilcliriHt liiul TrIaikI. 11 () U.r,:i7; Miller v. Cook, L. R. 10 Section 60. Not fthviiys uec-eshiirv. U. ( 11 nil- iiun V. liitv Kq. (147. j i * ^^V ■! 1 i , * 1 i i; p 1 . 52 POWER OF SALE. ^M-is" breach of trust (c) ; this, however, was not extended to a case where the mortgage was really an arrangement to give the client time on a debt already due (//). Effect of notice where iionu 56. Where there is no express provision for re.iuiied. noticc it nuiy happen that the mortgagee may either give a voluntary parol promise not to exercise without notice, or may voluntarily serve a notice for reasons proper to himself. In which case it is to be noted— that the parol promise without cons^ideration will not be binding [e), nor will the actual serving of notice on some parties ])rejudice the right to leave others unserved (/), or otherwise subject the mortgagee to the exigencies of a power with notice (g). 57. Perhaps the least objectionable form of such harsli powers is the alternative one frequently inserted in mortgages, by which a certain term is fixed for defa'ilt on which sale after notice may be had, and a further or greater period after which the power may be acted on without notice. Notice left to liisuru- tioii. 58. Cases also arise where a power is to be exercised after notice, but the character of the notice, to whom to be directed, and how or for what time, to be given (//), are in no way indicated. ((•) Cockbiirn v. K.hvards, L. K. IS Ch. 1). 149, (. NOTICE. 53 In such cases the inorti?af?ee is allowed to exercise ^**®" a reasonable discretion, and proceedings taken by him in honest exercise of his judgment will be sustained (z) ; for instance the notice may be piil)lie, and not necessarily an express personal one to any party interested (J). But if the power prescribes the nature of the notice and its proper recipient, in that case, not only may such proper recipient impeach the sale, where no notice has been given (/.), but also, the fact of his having actual notice of the proceedings will not relieve the mortgagee from the necessity of giving the notice strictly as provided for in tlu^ power clause (/). Conversely, too, if tlie notice be given strictly ;vs prescribed, it will suffice and none other can be icpiired (///). ■■4 i\ M m - t i ! If 1 ! I 1 : ■4 I ! I (])) To Whom (hvEX. 51). The i)roper recipient of notice, where notice "••p'"'!" is a condition of the power, will always depend on"''"""^^' the terms of tiie power as limited in tlie inscru- iiieut. The parties most commoidy designated for notification are perhaps tlie same as are mentioned in the extended form of the Short Forms Act, namely the "mortgagor, his heirs or assigns." These words, which, as we shall presently see, oft'er less of an option than graunnar would suggest. • !; i i;i \ :).: (i) Jones 4th ed. 177H. (./) U). IH-il. ik) DiHcher v. Canada Permanent, L. .V S. Co. IH O. U. 273. (/) Root V. Wheeler, 12 Abb. (N.Y.) Pr. 'i'.U. (?»i) Princeton Loan v. Moirison, liO Ul. 371 ; Reynoldw v. HenneHsy, h.Vtl.Tl'. '^1 1 1 ' •i; .1: ! Ill y^ 54 PnW'KU OF SALE. ^M^ei" ''^^^^' ^^' ^^^ '^ general rule, iiicuiiibeiit on the mortgagee to notify all and sundry who are, or seem to be, in any wise interested in the equity of redemption (;/). How ascei-' taiiied. ()0. In practice it is not a diflicult matter to ascertain w'lio tliese parties are. The first active step in sale proceedings is to make certain searches. Besides sending to the treasurer of the numicipality wherein the lands lie for a certificate as to arrears of taxes, it is the ordinary course to re(|uire from the sheriff of the county where the property is situate, a certificate as to executions against the mortgagor; and, in default of personal search, to require from the registrar of that county a continuation of the abstract from the registration of the mortgage under which sale is being had. The object of ascertaining, with a view to notice, the execution creditors of the mortgagor and the puisne incumbrancers of the estate will more fully appear in the discussion of the various classes to whom notice is due. Wlieif iiiortHiiKiir luiH assi^;ii I'll liis t'ljiiity Pdi'ticuhir ('/(is.scs. -{{) Marfgrff/or. ()1. The mortgagor himself, if lie still hold the e(piity of redemption, is the primary party to i)e bound by notice given. Nor— if the mortgagee would keep his other remedies —is the mortgagor any less entitled to it when he has absolutely con- veyed away iiis estate in the lands. For if — as 4.'if. (n) See Pearce v. Morris, I It. 5 t'li. 227 ; Turn v. Turner, 8!> Cli. 1) iff NOTICE. 66 every mortgagee intends — the debtor be sued on ^^^^^^ his personal covenant to pay, that of itself gives him a fresh right to redeem subject of course to any etjuities vested in his assigns (o). Notice then, being due to the mortgagor, it remains to add that it is not safe to omit notifying any one of several mortgagors. For though, for example, one tenant in common may not be able to redeem without the others (/>), yet it is not to those only whose right to redeem is perfect, that notice is to be given, but must further be given to all who have a partial right of redemption. f ,1^ •'V ir^^ n 02. While we are still discussing the necessity view of ° *' Mr. Jonos of notice to the mortgagor, it will not be out of place to refer to the not wholly erroneous view of the meaning and purpose of notice, expressed by Mr. Jones in his book on Mortgages, wherein he says, "The notice of sale required by the power is not for the benefit of the grantor, in the sense of a notice to him of the sale of the land for if that were the case he could altogether defeat any sale l)y going to a place where the notice could not leach him ; but it is intended rather to notify the (•omnninity that the sale will take place. The grantor will be presiumed to know that he is in default, and that his property is liable to be sold " {(/). In this view, the concealed suggestion, that notice of the intended sale to those interested — whom Mr. Jones expands into the connnunity — [o) Kinnaird v. Trollope, L.U. H5» Chy. 1). fi3(i. ip) Bolton V. Salm )u, L.U. IH'.U, 2 Ch, D. 52. (7) JoiieH, 4tli ed. 1800. ■ ' ! jj ;* if ■ II 60 POWEROF SALE. ^^^ has a value (on the day of auction) beyond tliat of a mere formal reminder to the debtor that he has not paid, — this hint is the redeeming aiKjgcstio veri in the opinion quoted. (2) A.s.sifjm of Mortgafjor. ()3. On reference to the case of Hoole v. Smith (/•), it will be seen that the seemin<,' option of service on the mortgagor "or" bis assigns, contiiins either no alternative, or an alternative' that opens backwards only. For, according to the view in tliat case, it would appear that notice to tbe assigns alone might i)e sutlicient; but, with or witlr out notice to the original mortgagor, they must be notified. We may now proceed to the enumera- tion of tlu» various classes of assigns, witli citation of cases severally relating tlu'reto. (54. Siih.st'f/iK'iif Purrhds-cr. — The most obvious assign is a subsecjuent purcliaser of the ecpiity of redemption, who bolds the land, which is the natural fund from which the debt is to be extin- guished. It will not bt> permitted to the mort- gagee, even with the consent of the mortgagor, to sap at the interests of the holder of any portion of the e([uity. Thus, where, with*)ut taking advantage of the power, the mortgagee and mortgagor together sold a portion of the land without concurrence of the then present owner of the remainder of it, and the mortgagee covenanted against incumbrances, it was held that the mortgagee, having thereby i|iiiMit piir flmsi'i'. (/•) L. K. 17 Ch 1). 1H4. SOTICK. o< put it out of liis power to reconvey the whole of mortgaged property, could not call on the owner of the remaining portion for payment of the balance of the mortgage money (.s). But a sale, fairly con- ducted as to notice and otherwise, under power of sale of any portion would both he valid and not interfere with the mortgagee's right to proceed tor any deficiency against the unsold portion of the property {t). S«ftlOIM 64 66. i! 11 ti ();>. Where the estate has been divided amoHii >*'v.">iuo it I'ciuity. a umiiber of purchasers, tliey must all be; notified Concerning wliich state of facts tlie law was tiuis formulated by Vice-Chancellor Spragge : "The general rule appears to i)c that when aft<>r i;'.ortgagos being given, the e(piity of redemj)tion is severed s(j tliat different persons are entitled to redeem in respect of different parcels, tliesc different persons must l)e made parties (//)." ()('). Siihsfuiuent Morfnnt/cf. — The rights of an....!,. v. , , , suiitli. pnisne mcumbrancer by second mortgage as an assign of the mortgagor have l)ecn so [)lainly declared by Mr. Justice Fry in Hoole v. Smith (D that to quote his decision will be a sufficient state- ment of the law in tliat regard. The facts were. Harrison was the mortgagor, Smitii the first mort- UJigee, Pierson the second morfgagee, and Hoole the assign of the second mortgagee: ii It is it ■! (fi) Govvlaii'l V. (iiirbntt. l:{ Gr. oTH. (t) Ih. i")H4, per Mount, V.C. {It) Buckley v. Wilson, 8 Gr. oOfi. (r) L. K. 17 Ch. 1) JHl. .58 POWER OF SALE. **JJ*}j°°' plain," said the jud^^e, "that Pierson and Hoole were assigns from Harrison, of whose assi«^nnients the defendant Smith had notice. The question in issue is whether he acted hiwfully in selling with- out giving notice to Pierson or Hoole. In my opinion notice to Harrison alone was not enough. Notice ought to have heen served either upon Harrison, the first mortgagor, and his assigns, or upon the assigns and not upon Harrison. When I find the words 'assigns' used in the power of sale as an alternative for Harrison, it is impossible tiiat I can hold that it was sufficient for the defendant to go on serving Harrison alone, after he had assigned his equity of redemption. The object of the proviso was that any assign might be at liberty t;) intervene and pay otf the mortgage, and no one could be more interested than the second mort- gagee in this right of intervention; whether Harrison's right to require notice was excluded by his assignment to a second mortgagee is irrelevant to the present case. The plaintiff will have an inquiry for damages against the defendant for exercising the power of sale without notice to him." 'reiiiuilr- mill if- vt'i-sioiii'is ()7. T^fiunt of Mortf/df/or. — Where the mort- gagor has leased his estate to a tenant (/6'), or allowed hini to be in possession under a written agreement for a lease (r), that tenant has a sufficient interest in the ecjuity, to entitle him to notice — unless it be the intention of the mortgagee to sell (w) Canada Permanent v. Macdonell, 22 Gr. 401. (J-) Tarn v. Turner, L. K. :W Ch. D. 45)i. w SOTICH. .y.) ! ■ r siil)j('ct to his term. It has further been held that ■j^l'JJ" tlir ri^^ht of such a tenant to redeem is absohite and not discretionary with tlie Court (//). Jirrcrsioner. — The same is true of the holder of a reversion after a morti,'a^'e for a term of years (^^[; even when tlie term was 1, ()()() years {a). 08. Asslgiu'i' of Insolrent. — Formerly, where iiis.-iveiit». tlu' iiiortga^'or had turned bankrupt, it was considered tlnit his assij,niee was a necessary part)' to foreclosure {b), but that the baidirupt himself was not (c). The safe practice now, where an assiifument has been nnide for the benefit of . Fj.recntion Crt'difor.s of Morff/cif/or. — How far the judgment creditors of the mortgagor, and which of them, are entitled to notice is considerablv ' ft !>. See aUo Bloor v. Bank of Upper Canada, 2 O. S. 31. 1 1 ^ m 00 lUtWEH OF s.ti.i:. "e**?*" creditor of ii inort^'ii^'or wlio has placed a writ '" a^'ainst lands in tfie Hheriff's hands. Hy sec. 2'2 of the ' Kxecntion Act,' U. S. (). 1HH7, c. 04, the effect of sei/nre or taking in execution is to affect the interest of the mortgagor at th(» turn) tlie writ was pla(U'd in the hands of the sheriff, and it has l)een lieldtliat tlie-operation of an execution a^'ainst an interest in lands is in effect that of an encuni- hrtinci' in inrifi(fn {/). * * * It was not needful to <^Mve new notices tiiereafter to persons putting" wiiMt executions in the sheriff's l)ands, from tiin(> to tinii-, wiL.t'iiUMi. l)i.tore tlie actual sah' ; otlierwise tiie rigiit to sell nn'ght he indefinitely post))()ne(l hy the incoiniug of ex<'cnti()ii creditors siil)se(iuent to tlie first notice. The execution creditors take only wliat tile mortgagor can give, and if he has had notice of sale U|)on did'ault, those putting in executions suhsecpiently stand in his shoes as to such notice, and cannot exact tlie service of any further or other notice. Those having ex(>cutions in forci' prior to the giving of the notice, come within the provisions of the Act — those after are not within the nu^aning of the contract as to notice hefore selling." Kxt'ciitioii cri'ditors 70. r have not heen ahle to find any case where fVuiVse- a right to notice has heen claimed for, or denied to, purchaser, ^hc cxccutiou creditor of a suhse(juent purchaser or suhsecpient mortgagee. Yet, if we are to con- clude from certain expressions of Vice-Chancellor Spra •"■(•■ft ni Darl ni<> Wil son (.-7), sucn a clann {/) Darlinj; v. Wilson, 10 Gr. 255. an IH (irant. 'i5(>. SOTICH. dl Section 70. IlK V. (III. mif^'ht be seriously advanced. The pertinent fact in that case were : a ni()rtt(a<'e hv a former owner,. ,. ( Martin) to the Trust and Jjoan Company ; saU* hy ^^"■" John Stewart (snhsecjnent owner) to .lames his brotlier with mort^'a^e hack ; execntions a^'ainst .hihii Stewart hy phiintitl"; and snit hy the Trnst and l.oan, resulting' in sale(thr()nf^h tlie Court). Now, says the Vice-Chancellor, " tiie phiintifl" was not made a party to the al)ove suit, and he comphiins ot the omission. If made a party it would have Ix'i'ii as jud;.,Mnent and execution creditor of John Stewart; and on the «(round that his execution a^^'aiust lands attached upon the m()rt<,^a^^' hy .lames to John ; that John was a mort«,'aj.,'ee, and that he as John's execution creditor was a deriva- tive mortgagee /// inrifunt, his execution creating a charge upon the mortgage to John ; and 1 think that such was the plaintiif's legal })osition." Vroui this not over clear case an argument might he built up to support a very inconvenient doctrine ill favor of execution creditors of suhscMpU'Ut purchasers and mortgagees, also of tenants and what not, as being themselves derivative incum- brancers /// { fir it tun [and seemingly ad injifiitiim) of recognized "assigns." Probably, however, if it came to a test, the courts would not incline to .such an argument but limit this doctrine as to "/// inritinn incumbrancers," to tiie execution creditors of the mortgagor himself. ' [I ■b' :il ., 02 POtVF.H OF SALH. Section 71. Whew iimrtKacni' (leri-astMl. (3) Heirs and licpresentatires. 71. Heirs, sion is (juitc co til liei n'esentative.s D evisees. -Pr ovi- \\y made — sind always in mort- <^^a^es witli C'OiMinoiu benefit of the Short Forms Act — tor notice to the heirs of the mort'^^a'^^or. The words of the extended form under that Act are " to the said mort;j^a«jfor his heirs or assigns " and despite numerous criticisms that it shouhl l)e hmited to tlie personal re))resentatives, the words his heirs are still allowed to remain in thf statute where thev operate in a peculiar maniuu* ;ind to the perplexity of the vendor under power, h'or, in the Devolution of I'iStiites Active), is the following section: '' 10. In the case of a person dyin^ aftci the 1st day of -luly, hSSCi, his pcrsoiud rrjtresenfd- firr for the time hein^" shall, in tiie interpretation of any Statute of this Province, or in tlic constrnc- tion of any instrunu'ut to which the deceased w;i-. a party, or in which he was interested, he derntnl ill l(iH\ his hrirs diul tissii/ns, unless a coutraJT intention appears." This enactment has j.'iveii rise to considerable doubt whether it wouhl not he proper, in the case of a deceased person entitled to notice, to notify the personal representati\ c to the excdusion of those who formerly wouM have been "heirs" if the latter much debat ^\ )itliet 1)(* still allowable. Thus in Grimsha eil We V. Parks (//) it was considered that the heir of ii deceased mort<^a<.(ee of the ecpiity was not a pro[)ei' party to a foreclosure action — that the proper Titles itm) R. S. O. 18H7, c. 108. (/.) 6C. L. J. 112. ■"•Tl? rl SOTICH. (>a party was the personal representative. Again in 8«ction I^iixter V. Tiirnbnll (/), the personal representative of a deceased partner was held the proper party. On the other hand in Keen v. Codd (y), the ques- tion was much debated whether under the Devolu- tion of Estates Act the personal representative sliould he notified to the exclusion of the heirs ;it law ; the Chancellor l)eing of tlie contrary opinion. It would seem consistent, that as the courts have not seen fit to make so strong an ii|il)hcMtion of tlie Act as to absorb the "assigns" (if the deceased in his personal representative, that they would be e([ually slow to so absorb his " iieirs " (/.). h'urther, it would be exceedingly unsafe— in view of tlie late Act (ol V. c. 18) which .1 v. is makes the })roperty in the personal re})resentative a very transient affair — to neglect to give notifi- cation to the heirs also. There is no doubt, how- ever, that it would not do to neglect to serve the representative himself, for he is at least an ii^sign by operation of law. That dilliculties may arise in connection with the service of notice when 110 personal representative has been appointed, has been noticed by Mr. K. I). Armour in his book on Titles (/). A devisee of a (testate) mortgagor is in much '••^i~"- the same position iiiuh r the Devolution of Kstates \ct as the heir of an intestate, but with the 01 2 (;r. r,2i. (j) 14 P.U. 182. ik) See also Uartlett v. Jul!, 28 Or. 140, for meaning' of "or." (0 V. 'H'tH (piotiii^ Parkinson v. Ilanbury, L. H. 2 II. L. IH; and see A\lward v. Lewis, L. R. 18',U, 2 Ch H7. ■tl n 711 it <)4 I'oh'hh of salh. Ti^tT" (liff^'renre that he ooiiics under the head of an ~ " assign "- ■i.e. an {»ssign hy will. 1h iioli(-f to truHtee wuttic 7'2. (^esfnis (/ne inistetit. — Where the party, '*""' ostensihly the proper recipient of notice, is known hy the mortgagee to he a trustee of tlie property for ascertained persons, hoth trustee and ce-sfiiis que tnistent should i)e notified. Tliis is at any rate the case wlien it is witliin the knowledge of the niortirairee that there are circumstances that "o"o will likely prevent the trustee from the etiicicnt performance of his trust. 'rims where the trustee holding a second mortgage, who hud tiu'ned hankrupt, was made a defendant to foreclosure by the prior mortgagee, it was held that he could not repres(>nt his vest n is (/iic fr/isft-iif, and that they were necessary parties (;;/). On the other hand, as there are cases in wiiich tiie trustee we shall see might he passed over an( henetlciaries serve< I ms tead. -1. 117 -f's and their Liferents. Wife M II (tine 7H. po/rer. — The wife of the mortgagor of the le(/((/ e.sfd/e has certain rights with which a mort- gagee must reckon. If she has not harred ov released her dower in favor of the mortgagee, his estate is, of course, suhject to her contingent rights. Where, however, as is usually tile case, she has harred her dower in the mortgage, she is never- theless an interesLed party to sah' proceedings and must he notitie(l accordingly. This rule, however. [iii\ Kiaiicis V. narrisKii. L. I{. t;{ ("li. D. ls:t. SOTICE h.) iiiid the reasons that support it do not apply to section the wife of a subse(|uent piireh; ser; thougli per- lijips on account of the 6th section of the Dower Act (n) l)oth nii^'ht ai)ply to tli(? wife of the iiiort<,'agor in a |)uisne moi-tgiige. In Moniv v. ^,';.;';,';_,y, licnjamin (oi, an item of J^^'i./J^ in a liill of costs, (•;iU('(l fortli from the l)en('h a distinction and a refined one at that — between tlie respcctivj' ri^j^hts to dower of tlie wives of inort<,'a^mrs and suhse((Ut'nt ]inrcha rs. To (pioti^ the words of Mr. Justice IW'iiiiiiiiiii. Kuoertson, tlie (hstinction is as foil ows 'I'll (lower of tilt' wife in this case (/./'. wife of sidisetpient [Hircliaser) is :> creature of the Statute (\i. S.O. iSS7, c. 18;J, s. 1 ) and It is limited to lier hiishiind dyin^' seized ; he can defeat the dower in his lifetime by convey)' ;.r 1 iis estate, Mrs. W. is not in the same pMsitioii » ! lie wife of the mort^^'a^'or ( if he had (Uie) who was entitled to dower or had an inchoate ri^dit thereto, by reason of her hushand b(Mn,L( seized of an tate of inheritance in fee sim))le ; that was so at mnion law ; after creatiiiij: the ni()rt''a''e in which es CO n"-n^ hiie Joined for the piu'pose of barring' her dower lioth liad tlie ri^dit to redeem-the wife because of the 5th section of tiie Dower Act declaring' that no har of dower containe(l in any mort;^af,'e, etc., shall operate to bar su(di dower to any /j^reater extent than shall be necessary to fjive hill elYect to the ri^dit of the mort^'a^'ee, etc. Assuming' then that the niortffa''or and his wif(» assi CO POWER OF SALE. *?S"4°" <'4i'ity to which dower did not attach unless he ■ died sci/ed. His equity by this action is now beiiig i"t)reclosed. How can it be said under such circuinstanccs that his wife has any ri<^lits ? At law the dower attaclies in the life-time of the husband upon the n]arria<^e or ac(juisition of the property, and if the inort<,'ii o' (1) The wife of the original mortgagor of the legal estate must be notified in a sale under a mortgage, wherein — as always should be the case — she has joined to l)nr dower (7). ('2) The wife of such niortgagor, if he mort- gage a second time aiul to a different person, sliould join in the mortgage and be given notice of sale ; for the bar of dower in the tirst mortgage operates only for the purposes of that mortgage. [p) See also Hmith v. Smith, 3 Or. 458. (q) See also Ayerst v. McLean, It l\ R. 15; Huilding A Loan v. Carswf II, « 1'. R. 7H, aiul i'2 Vict. c. '22. NOTICE. 67 (8) The wife of a subsequent purchaser need ^^*i°^" not be notified under a mortgage existing at uy,^t,, „f- the time of his purchase. But possil)ly if he diedbXl^pro. Iit'forc proceedings taken it would be prudent to give her notice. For he died possessed of a certain estate (as yet not foreclosed in any manner) and she has a right of dower in whatever he died possessed of. (4) A bar of dower in a second mortgage by the wife of the subsequent purchaser, during the existence of the first mortgage, would perhaps not be necessary [r). ]3ut there miglit afterwards arise complications on a discharge of the prior incumbrance (.s). (5) Principal and Suretf/. 75. Where the mortgagor stands to a third party in the position of principal or surety in relation to the mortgage debt — both should be notified (f). Tills would apparently follow, in the nature of things, from the liability of the creditor to unwit- tingly release the surety by dealings behind his back. It seems, however, that by proceeding to sell the lands of the principal without notice to the surety, the latter will not necessarily be discharged, hut the mortgagee will be liable as between him- (»•) See argument in Casner v. Haiglit, (> O. H. 451 (a case where wife of mortgagor not allowed to redeem). (.<) For other cases on subject see Rowe v. Wert. 7 P. R. '2ii'2 ; Lon>; V. LoHK, 17 Gr. 251; Moffatt v. Thompson, 3 Gr. Ill; Sa.;:ier8on ▼. (."aston, 1 Gr. 31!) ; Davidson v. Boyes, tJ P. R. 27 ; and consult 42 Vict. c. 22. it) Snider v. Sheppard, 12 Gr. 450. '. 1 08 POWER OF SALE. ^sSS" ^®^^ ^^^^ ^^® surety for the full value of the property. Or, as expressed by Chancellor Spraf^ge I'oturety. ^^ Martiu V. Hall (//), " They (the defendants) do not appear to have denied the right of the surety to have the proceeds credited upon the note. The plaintiffs claim more ; their contention is that the land having been sold without notice to the surety he was entitled to be discharged absolutely : — When a security is lost through the negligence of the creditor lu» is bouiul simply to make it good"(r). should lie IH'nilucud Ht Hiile. (0) Jmhiinint Crjo'itors of Mortfjarfrc. 70. There uiight be som(» authority for a theory that the Judgment creditors of tlie mortgagee him- self sliould be notified (/r). Certainly it has i)een laid down that where a mortgagee, against whom judgments are registered, exercises a power of sale, his judgment creditors have such an interest in the due exercise of the power tliat the Court will grant them relief against the mortgiigee exercising it to their disadvantage (,/). Nevertheless, while it might be worth while for a purchaser to insist on the production of the iuortgage at the time of sale, that he may be sure it is not in the pocket of the sheriff, yet it is (piite certain that it is not (i«) 25 Gr. 471. (r) See Joiioh v. Dunbar, 3*2 II. C. C. P. 13(5 for doty of creditor of and mortfiaj^ee toward Hureties. (w) Sanderson v. Ince, 7 Gr. 3H3, a meagrely reported case, where they were couHidereil uecetisary parties to a mortgage action. (x) Commercial Bank v. Watson, 5 C. L. J. 163. SUTICK. 69 M worth while to {idiiionish a mortefa«'ee-vendor to ■•cuona o o 76-78. notify his creditors of where there are funds to attach. (7) Classes not entitled to Notice. 77. Such parties as have formerly (or represent tliose who foriiH'rly) iiad a certain interest in tlie land or ecjuity, and wiiose ri^dits and liabili- ties are both entirely extinguished, need not be notified. For instance, if a mortgagee has assigned tlu mortgage — unless, at any rate, he be under obligation to make good a deficiency on sale (//) — he is not a necessary party (/). Again, the represen- tative of a deceased tenant for life of the equity has no right to notice (d) — ol)viously so, because the estate had vanished before he became represen- tative. Nor need notice be given a trustee during minority, where the cestui que trust has attained iiis full age (h). h \ 78. There is also a class of cases where it is optional cases. optional either to notify tlie party or to recognize liis rights as paramount to the mortgage. For instance, in the case of a tenant of the mortgagor, as above mentioned. A somewhat conjplicated case of such option is Long v. Long (c), where there was first a mortgage, then a devise of half the property to one son and half to the other, charging (i/l Sec Richmond v. Evans, H Gr. "»0H. (?) Guodt-rliani v. De (IraHsi, 2 Gr. 135. ((I) Forsythe v. Drake, 1 Gr. 223, (M Ih. (c) 17 Grant 251. 70 PoWKli OF SALE seotioM (^.ji^.h with an aiinuity to his widow. One of the 78-79. '^ ~ — sons (lied intestate, and his widow paid the mort- gage and took an assi^nnnent. It was held that if widow number two was wiUing to make the annuity a first charge on tlie property the testator's widow could not insist on redeeming tlie mortgage. Cooti'"s oiiiiiioii. IS). Mr. Coote, in his book on Mortgages (r7), has made the following somewhat broad statement: " The notice rccjuired by the power of sale need only be given to the mortgagor and those claiming under him, and need not be given to persons wlio claim paramount to the mortgagor, but at the same time sul)ject to the mortgage, even though such persons may have a rigiit to redeem and to recjuire an account of the proceeds of sale " {e). Doubtless it is true that if in the exercise of the commonly used powc'rs, the mortgagee notiHes the mortgagor (or liis lieirs) and his assigns, then he v.ill have literally fulHlled tlie condition on which >Av may be had. ]Jut it is the more prudent course to act so that those having " a right to redeem and to require an account of tlie proceeds of sale," sliall be bound by some notitJcation of the proceed- ings to extinguish their right and interest. Accord- ingly, y\r. Coote's statement may be taken to be true to the extent of whatever distinction tliei'e is between technically fulfilling a condition precedent of sale and binding by estoppel tlie interested parties, as to the sale proceedings. ((/) iltli ed. 'IIA, citiiiy Major v. Wind, t> Hunt, 55)8; Hawkins v. Ramabottom, 1 Pri. 138. (f) See also McConib v. Bpangler, 71 Cal. 418. soTici:. 71 ■'! 'i not IOC. ((') FoHM ANM» CoNTFNTS OF NoTICK. Section HO. Tlio notico to bo j^'ivcii in any particular case imist i)L' rc^mlar in contbniiity witli tlie terms of the particular power uiuler wliicli it is j^Mvcn; and must l)e accurate in what it states and sutlicient in the (piautity of its information (/). [{. S. (). 1887, c. lO-i, which enacts the implied power of sale, prescribes a form of notice also for use in connection therewitli ; whicli form has the merit of being terse in its terminology, containing merely a demand for payment, a statement of what is due on the mortgage recited, and a declaration of intention to sell under the authority of the Act. Tlie ordinary form of notice in use in Ontario is^'"'i'"n''y t' form of somewhat longer, containing, besides the demand for payment (//) and the statement of amount due, (//) a description of the property and some other features. While it seems adapted to nearly any . form of power-clause, it is evidently based (m the necessities of the Short Form Act, which, in the larger clause, })rovides for ' a written notice ' * ' of his intention (/) in tluit beiuilf.' The words 'in that behalf are comixMidious for the numerous acts in coiniection with selling, leasing, and so i/i An inaccunvte HtivleDU'iit of wliat in U. I. ")51. (m) JoiiOK 4tli Kd., 1H41 ; Mnrsli v. Morton, mipm. (»() Sec hIho Colj»an v. McNamara, 18 Atl. 157, as to the efifect of recital of rofjistration wliere names of both niortj{at{or and mort^^agee emitted. Cf. Stickney v. Evans, 127 Mass. '202; Loveland v. Clark, IH l»rtc. 5U. NOTICE. 73 j)r()(.'ee(linf,'s will be instituted to obtain possession "JJ^JJ" in). Nor according to American autbority will til.' notice be valid if it purport to sell merely tbe equity of redemption (p). Jiut as tbere is some Canadian autbority for tbe statement " tbat tbe j)Ower of sale is a power to sell and convey tiie t'(|uity of redemption (ndy" (7), it is probable tbat sucb a recital would not invalidate a notice in tbis Province (r). H4. I'nimportant omissions will not break tbe etlect of tbe notice; as, for instance, in a sale under second mortgage an omission to state wbat is due on tlie first mortgage, tbougb also vested in tbe intending vendor (.s). Hut tbe statement ofTowhom Mr. Jones, in bis book on Mortgages, tbat it is unimportant to recite tbe names of tbe owners of tile e(piity of redem[)tion, must not be leant on too iMUcb as to our law (t). Our Sbort Form Act in tbe extended clause merely says, a ' written notice to tbe said mortgagor, bis beirs or assigns,' wbicb <('rtainlv leaves it doubtful wbetber a notice not purporting to be made to tbem specitically, would i)e surticient. It is advisable, tben, sometimes to <]ualify tbe terms of tbe power by sucb an addition as tbe following: — "Provided sucb notice as aforesaid may be ett'ectively given wbetber or not addressed to any pev'(ni by name or designation.'' («) Biirtlett V. .lull, 28 Gr. 140. I in Fowle v. Merrill, 10 Allen (Mass.) 3.")0. ((/) strong, J., ill Kelly v. Imperiiil, 11 S. C. K. .V2rt. (r, Cf. Ashworth v. Morrisey, 'J Ex. IT't. (.1) (.'f. Jones, 4tli Ed. iH.lti. (/) See Jones, Itli Ed. 1844; also Roche v. Farnsworth. 10»> Mass. 5011. u :M IJ IMAGE EVALUATION TEST TARGET (MT-S) 1.0 I.I 1.25 - IIIIIM IIIM 40 IIM 2.2 |||||m U llll 1.6 VI ^ /2 'c>l ■^ c?1 7 /^ c-v^ ? Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 872-4503 \ iV ^S^ ^^ a ^^ f^ :\ \ 6^ V ..^ f> "ife^ PWPP I' 'i 74 Sections 86-86. Manifest otniRsioiiR. POWER OF SALE. 8'5. Manifest clerical omissions may be supplied from the context. Thus a notice reciting that " by virtue of the power * * * the said mort- gaged premises at public auction for cash to the highest bidder," was not deemed insufficient from the omission of " will be sold " after the word " premises," since the other recitals show that a sale was meant (//). Where, too, the notice of sale ran: "On the premises" etc. (describing same) will be sold — without categorically stating what will be sold — the notice was nevertheless sufficient as .0 Lhe subject of sale (v). {p\ ■ .-.VICE OF THE Notice. (1) GeneraUij. 80. In giving notice there are two chief sources of difficulty, the necessity to give notice to the right person and the necessity to give it in the right way. Cases coming under the first head have been previously treated in this Chapter ; it remains then to take up the second source of trouble namely, the proper ways of giving notifi- cation. Where the mode of giving notice is not (h) Naw V. Brunette, (Wis.) 48 N. W. 649. (r) Streeter v. Usley, 151 Mass. 291. N.B. — Considerable caution should be used in availint{ oneself of American authorities as to Power of Sale ; partly because they are often marked by excessive refining, partly because they are often interpretations of codified law, or pertain to mortgages of ' homesteads,' and (as regards notice) chiefly because the notice considered in them is quite a different thing from that herein discussed being as much a public advertisement as a notice of intention to sell. NOTICE. 75 prescribed by the terms of the power, a reasonable ^|JJ55" discretion will be allowed ; but where a specific " mode is provided the same nnist be followed. Thus it may happen that the prescribed way of giving notice is of the least possible value to the parties who are tliereby bound, as for instance where the provision was for notice gi/en to S., his heirs, executors, administrators or assigns, or left at his or their usual or last known place of abode, and the notice was accordingly fixed to the door of the said last known place of abode, it was held valid service as against the mortgagor's creditors; although such a notice is clearly of small practical value to persons other than the occupant (w). On the other hand a mortgagee may seek to improve on the prescription of the written instrument ; asin^JJJ.f,^'t\y Bartlett v. Jull (.r) where he served the widow and '^""" administratrix of the mortgagor — with a notice addressed to her as widow — instead of the party properly entitled, a child of three years. Undoubt- edly in this case the mortgagee served the more competent person, but he thereby served a person who had, strictly, " nothing to do with the matter " and the sale was upset. (2) Under Short Fornt.s Act. I- 1 \ ^ i" i I 11 :v .a 87. Leading case, O'Donohoe v. Whitty, 2 0. R. 430. We cannot do better than (piote the words of Mr. Chancellor Boyd. " The service is {w) Major v. Ward. 5 Hare 598. (x) 28 Gr. 140. 76 POWER OF SALE. Sectton 87. Three modee of service, to be made either personally or at his or their usual or last place of residence within this Province {ij). The learned judge (z) held that service could not be made at the residence unless it appeared that the mortgagor was out of the jurisdiction and that the solicitor should have told his clients, as a matter of law that the service he was about to make would be useless if the mortgagor was still in the Province. But as I read the Act there is an alternative mode permitted. The service may be (1) personal; or, (2) at the mortgagor's usual place of residence within the Province ; or, (3) at his last place of residence within the P-'^-^ince. The first and second modes of service are probably suggested by the practice pursued in serving process in ordinary litigation in the Court of Chancery, in which it is not essential that the service be personal, but it may be validly made by leaving the copy with a grown-up inmate at the defendant's place of abode : Danicll's Ch. Pr. 5th ed. p. 267. "It cannot be the intention of the Act that service may not be effected at the mortgagor's usual or last place of residence unless he is out of the Province, because that would be to import a restriction into the Statute which is not fairly deducible from its language. " Provision may well have been intended for the case of a mortgagor leaving home for a wander- ing life on lake or land in Ontario, where it would (v) R. 8. O. 1887, c. 107, p. 971. (z) Mr. Justice Proudfoot, from whom appeal. NOTICE. 77 be unreasonable to compel the mortgagee to follow, ^J^JJJ"" and perhaps WLste time and money in a fruitless search. The construction is supported by Major V. Ward, 5 Ha. 598 (a) and to some extent also by subsequent legislation, whereby service of notice is made merely directory, and the failure to give notice does not invalidate the sale : 42 Vict. c. 20, s. 4." 88. If we are to follow the decision of ^""""^ "-'' the Chancellor — and with him that in Major v. Ward, we are then to conclude that service by leaving the notice with a grown up inmate, or where unoccupied, posting on the door of the mort- gagor's last abode, would be good and valid service not only as against the mortgagor himself — for which we have the Chancellor's dictum, but also as against the assigns, judgment creditors and the rest — which is the effect of Major v. Ward. Yet it would scarcely have beer worth while for judges so strongly to insist on the rights of the " assigns " if service on them could be effected in this alarm- ingly simple manner. It would be more consistent with the interpretation of the option between the mortgagor and his assigns in favor of the latter, likewise to interpret the option " his or their usual or last place of residence " in favor of what is theirs. The absence of either the mortgagor or his assign should not prejudice the other ; service should be made on everyone interested, with the option stated of so serving any of them at their respective abodes. (a) See section 86 supra. li '4\i 111 h ill I ■IF^^ 7.8 POWER OF SALE. Usually done ill any event 'sSS" ^^' ^^^ practice many solicitors post the notice on the mortgaged premises as a matter of course, and this Jict of posting up, while it may not be binding on all partic^s, will at least be effectual against any who should claim as tenants of tlie mortgagor. Nor is it necessary, for whatever effect the notice may have, that it should remain posted up during the period of notice, provided only it be posted in time (h). (8) Notice bfj Puhlication. 90. A very common, convenient and equitable method of giving notice, stipulated for in mort- gages, is by publication for a certain p -iod in a newspaper published in the county where the property is situate. Questions sometimes arise in this connection where the publication was stipu- lated for, say once a week for four successive weeks, and the vendor has clipped the time rather closely by hurriedly bringing on the auction (c). For When time iiistance, according to the terminology of the beRinsto jj^f^i^j-^^jj^^i^t, it might happen that where the real intention of the parties was to have a month's notice, yet (1) Notice would have to be given by publication once a week during four successive weeks, and then the month to run after the last publication ; or what will generally be the reason- able construction, (2) Notice would have to be (6) Graham v. Fells, 53 Mass. 307. (c) Cases of this sort may arise where an order allowing " further proceedings " has been obtained under R. S. O. 1887, c. 102. ti Wt '. soTici:. 79 I M iriven as aforesaid with the inoiith to run from the ''I^Jj" Mrst insertion {<]) ; or (8) Notice would have to be l,nven as aforesaid, but the first insertion need not be four weeks before the time for sale (e), e.g., the last advertisement might be on the morning of sale (/). 91. Another difficulty in such cases — when the Date of time allowed for payment before default, or for payment after notice, has been cut too fine, is that the date of the paper is not always the date of publication, and a difference of a day may invali- date proceedings. Thus, where the last day of payment under the mortgage was a Friday, and the advertisement of notice was to be inserted in the Saturday issue, on proof of the fact that the paper was really published on Friday, the sale was voided (g). On the other hand, a notice served or published after the date it bears may still be valid provided the sale do not cake place until the pre- scribed period has elapsed (7/). 92. As to what paper the notice shall appear ^^'"1' in, the instrument being silent, the mortgagee is allowed a reasonable discretion (i). It seems that {d) Ct. Howard v. Fulton (Tex.), 14 S. W. 1001 ; First National Bank V. Bell Silver Co. 8 Ment. 32 ; Bacon v. Kennedy. 56 Mich. 32'J. (e) Dexter v. Sliopard, 117 Mass. 480. (/') Worley v. Naylor, G Minn. 192. For interpretation of " twenty days' notice," see Washington v. Bassett, 10 Atl. (!25 ; " thirty days' public notice," Kellogg v. Carrico, 47 Mo. 157 ; " ten days before sale," Cush- nian v. Stone, 6'J 111. 516 ; Weld v. liees, 48 111, 42S. See also Taylor v- Keid, 103 111. 349; Jenkins v. Pierce, 98 111 646. A " month " in a mort- f!age deed means a calendar month, Coote, 5th rid. 274. Cf. Short Forms Act ; also R. S. O. 1887, c. 1, s. 8 (15). (.7) Pratt V. Tucern, 21 Minn. 142. (ft) Matters v. Brown, 9 Jur. N. S. 958. (i) See Jones, 4th ed. 1835 ; Ingle v. Cuthbertson, 43 Iowa. 265. ■I ^i >2 > 1^' 111 80 POWER OF Sale. ^Sm" *^^ proof of largest (j), or of any circulation is ■ required (k) ; nor need the advertisement appear in all the editions published on the day of notice (I). Where the instrument speaks, its provisions must strictly be followed or the notice will be invalid (m). Re),'iniiing OVL'V. nieiit ceediiifis 93. When mistakes have been made by the mortgagee, either in the contents of the advertise- ment or the dates of its publication or otherwise, such as are likely to invalidate the proceedings, it is not always permissible to cure the defect by postponing the sale or publishing a further notice for another week, the safer practice being to begin the proceedings over again (n). 94. We may here observe that an assignment of dmVnR pro- the mortgage during advertisement or notice will not pass the benefit of the adveitisement or notice to the assignee, as such proceedings taken in the name of the assignor are proceedings by a party who has ceased to be concerned in the property (o). Where also the mortgagee is dead, the proceedings taken in his name are void and not to be cured by evidence that they have really been carried on by another (^>). (j) Kellogg V. Carrico, 47 Mo. 157 ; where it was a law and adver- tifling journal of limited circulation. Cf. also Stevenson v. Hano, 148 Mass. 616 ; Hull v. King, 38 Minn. 349. (k) St. Joseph Mnfg. Co. v. Daggett, 84 111. 556. (I) Everson v. Johnson, 22 Hun. (N.Y.) 115. (»i) Thornbury v. Jones, 36 Mo. 514 ; where notice should have been published in two counties, and was published in but one, the sale was opset. (n) See Jones, 4th ed. 1832, 1851. (o) Niles V. Bansford, 1 Mich. 338. (p) Welsh V. Cooley (Minn.) 46 N, W. 908 ; Bausmann v. Keeley, 38 Minn. 197. NOTICE. 81 Section 95. (4) Servii^e on Persons under Incapacity or Disability. 95. In Bartlett v. Jiill (q), we have a statement ''"'"'so^ by Chancellor Spragge of the law as to service wuh.'''^'* of notice on persons not of full capacity. " I find no case " he says, " in which it has been held, or in which it has been contended, that where, by the terms of the contract, notice is required to be given, notice will be dispensed with because the person to whom it is to be given is not of capacity to understand it. * * * It does not follow, from the heir in this case being so young (r), that the placing of a proper notice in his hands directed to him as heir-at-law would necessarily have been an idle form. It might have drawn the attention of the child's mother, who was, I apprehend his guardian in socage, to his rights and to her duties in that relation ; but whether practically useful or not, it was a something without the doing of which the mortgagee had not the power to sell (.s)." The safer rule is to serve both the infant and his guar- dian, or the lunatic it) and his committee, where the guardian or committee is in existence and ascertainable. In the case of a lunatic confined in a public asylum the " inspector of prisons and asylums," while committee for certain purposes, (q) 28 Gr. 140. (/•) 3 years old. (s) See also Tacey v. Lawrence, 18 Jur. 590, where notice was held ^'ood when served on infant and guardian. (t) That it is not essential we learn from Robertson v. Lockie, 15 Sim. 285 ; Mellerah v. Keen, 27 Beav. 23(5. H.P.8. — 6 82 POWER OF SALE. ^^2^* is by R. S. 0. 1887, c. 245, s. 55, not committee for — the purpose of service in "any action or other pro- ceeding." Servit'ii uiulor Btatutory. implied power. (5) Notice under 11 S. 0. 1887, c. 102, s. 20. 96. Under the provisions of this Statute, notice is to be given '* to any subsequent incumbrancer and to the person entitled to the property subject to the charge and to such incumbrance," " either personally or at his usual or last place of residence in this Province." This leaves no doubt as to notice being due to the " assigns " of the mort- gagor. But the adjective ' his ' would seemingly refer to the person entitled to the property ; and therefore leaves the same dubious law as to the efficacy of posting up on the mortgagor's residence notice that shall be good as against "his assigns." The absurd conditions imposed by the state of law illustrated in Bartlett \. Jull (//) are modilied by two provisions ; one for service on the executors and administrators of the deceased as well as on his infant heirs or devisees, and the other for service of notice to an infant heir on his guardian, and on himself if over the age of 12 years. Wliore allowed. (E) Notice Concurrent with Default. 97. While there can be no doubt that notice of sale given before the beginning of default is of no effect, inasmuch as the mortgagee is attempting to (?() Supra. ynrr ¥\ NOTICE CONCUIiRKNT. 83 use a power which is not available until the '^^ happening of a contingency that has not yet arisen; * on the other hand it is not settled how far in every case it is possible or impossible to the mortgagee to give a notice after the beginning of default which shall run concurrently with a portion of the time during which, according to the power-clause, default continuing, authorizes sale. In Grant v. Canada Life (f) the power of sale ran as follows : — "Provided that the mortgagees on default of payment for three months may enter on and lease or sell the said lands without notice ; and the mortgagees covenant with the mortgagors that no sale or lease of the said lands shall be made or granted by them until such time, as one month's notice in writing shall have been given to the mortgagors." Besides deciding that in any event the purchaser took a good title, the court held that a notice served at any time after default was suffi- cient, and the mortgagees were not bound to wait until default had been made for three months to give such notice ; in other words the notice and default might be concurrent. The plaintiff was heard bitterly to lament : — " In that case the stipulation in the instrument only served as a pitfall to the unwary (/t')-" U- .1 I , t I 98. Where, however, the stipulation is simply ^^'f//^°°' for one month's default and one month's notice, it appears that the two may not run concurrently (x). :-ll (v) 25) Gr. 256 (Proudfoot, J.) (w) Cf. also the similar case, Selwyn v. Garflt, L. R. 38 Ch. D 283. (V) Gibbons v. McDougall, 26 Grant, 214 (Blake, V.C.) w I '1 ' ' 84 POWER OF SALE. "m"?*' ^^oreover, under the Short Form Act the extended "form is explicit enough in this regard. (1) If the mortgagor "shall make default ;" (2) "and calendar months shall have thereafter elapsed" without payment ; (8) then " it shah and may he lawfuV to the mortgagee after giving notice such and such a time previous to the sale, to exercise his power. In other words before the mortgagee can lawfully tak*^ steps — notice among them — under the power, there must have been default and, defjiult nnist have continued during the entire period mentioned in the abbreviated form. Option to accelerate. Piflect of tender. (¥) Effect of Notice. (1) Acceleration and Tender. 90. The first effect of notice requiring payment of all moneys secured by the mortgage, is that it operates as an irrevocable decision by the mortga- gee to accelerate the payment of the principal. In Ontario this effect arises Irom a specific enactment, viz :— R. B. 0. 1887, c. 102, s. 31. By this provi- sion the party giving such notice " shall accept and receive payment for the same {i.e., all moneys secured) if made as required by the terms of such notice or demand; " provision being further made for the taxation of costs where disputed. Apart from this enactment, the law of England, which we would naturally follow, is to the effect that a tender of payment may be made at any time before sale ; and if it be of the proper amount and sufficiently formal, the mortgagee must stop pro- 1 1 "'pl ■''>.] K NOTICE, KFFKCT OF. 85 1 1! ceedinf^s, otherwise the sale iiuiy be set aside or Y9?w* even restrained (//); and in any event interest will • cease to run, and the costs of proceedings, subse- quent to the tender, will be against the mortgagee (z). But the tender should be formal and the iijoney tendered should be kept ready for payment {(i). A different rule as to the effect of tender seems to prevail in Massachusetts, where tender made after default will not defeat the right to sale (6). That the acceleration of the principal is abso- lute may be deduced from the decision in lie Al- ^* Aicock. cock, Prescott v. Phipps (c), where a six nj(;iiths' notice for payment after default had been givt;n by the mortgagor and accepted by the mort'.iigee. and yet — sale proceedings once begun to realize the debt — it \\.;s held that the mortgagee niu,«»l do ■with his principal and interest to date of tender, instead of interest up to the date fixed by the six months' notice. (2) Right to Iteconveijance and AsHignment. 'I :: iil 100. Any party interested in the equity of re- demption, and tendering the amount due, has a right to a discharge or reconveyance of the pro- perty incumbered, and that too where his interest is but a partial one ; in whiv h latter case it is the 1 1 (y) Whitworth v. Bhodes, 20 L.'J. N. S. 105. ' (z) Williams v. Sorrell, 4 Ves. 389. (a) Tender should be formal, not a constructive one, e.g., a summons to stay proceedings is not % good tender. Cf. Kinnaird v. TroUope, L. 1'.. 42 Ch. D. 610. (fi) Jones 4th ed. 1798; Cranston v. Crane, 97 Mass. 459. {c) L. R. 23 Ch. D. 376. V '' 1! 86 POWER OF SALE. 100102, Bight to assign- ment. 100102* ^"^^ ^^ *^® mort- (h) Marriott v. Anchor Reversionary Co., 7 Jur. N. S. loo, 713. (/) Matthie v. lidwards, 10 Jur. 851, 11 Jur. 761. (j) It seems that while a mortgagee may leave tlie sale entirely in the hands of his auctioneer, a trustee (under that form of security) must be personally present at the sale. Jones, 1th ed. 18(51-2. (k) Richmond v. Evans, 8 (Jr. 508. vm AUCriOSEER. 91 by him (/) ; and these particulars must first be ^^^^ settled before sale can usefully be advertised. K. S. 0. 1887, c. 102, s. 21, which relates to auctions, defines auctioneer as meaning " any person selling by public auction." It is not, however, to be sup- posed, that it is permitted to everybody to act as auctioneer, the licensing of which class is generally j)vovided for by by-law under the Municipal Act {ni). 107. It is hardly necessary to spin out at length tlie duties and authority of the auctioneer, further than to notice a few peculiarities of his position in ii sale of this sort (//). It seems he may act as a^ent of both vendor and purchaser to sign a memorandum of the sale (o). But the better prac- tice is to append a short memorandum to the con- ditions of sale, and have the purchaser sign the siuiie. Great care should be exercised by the auctioneer in the statements which he makes at the time of auction ; for if they be relied on by the purchaser, the vendor nmst either j-ive the purchaser their benefit if they can be made good ; or at any rate it does not lie in his mouth — the statements being untrue — to ask the courts to force the property upon the pur- chaser (j)). Furthermore, in case the sale be broken for such cause, the mortgagee will be liable (/) E.fi. a tavern In many of the United States, mortgage salea are held at the Court House door. (m) R. S. 0. 1887, c. 184, s. 495 (2). (/() As to purchase by auctioneer, see Welch v. Coley, 82 Ala. 363. (()) Benjamin on Sale, 3rd ed. p. 234 ; cf. Cook v. Billiard, 9 Fed. Rep. 4. ip) See Montgomery v. Ford, .5 Gr. 210. Duties of auctioneer n^ I ''' , i^ m mn^ ■92 POWER OF SALE. xSSos" ^^^ ^^y ^^^^ *^ either the mortgagor or any subse- quent incumbrancer (^). Nor should the auctioneer Should not insert in the particulars of sale representations that tamper ■"• ■"■ Jitions""" '^1'^ ^0* ^^^® 5 o^ rather he should not be allowed either to become the vehicle of necessary informa- tion, which the bidder may choose to deny having heard, or to meddle with the advertisements, par- ticulars or conditions, or to make any statements not warranted by the same ; except, of course, by way of " commendation" of the property sold, in which he is allowed some latitude, so as to make the bidding more brisk. For if the auctioneer had to abstain from superlatives there would be few sales by auction, and there is no harm in warm and enthusiastic praises in a general way, so long as the purchaser does not pin his faith to them to his detriment. Charges. 108. As to an auctioneer's charges, they should be reasonable in the light of the circumstances under which the sale is held. A safe rule IVjr the mortgagee is to cut them as close as possible to those allowed him in a sale by the court, for there is always some danger of a taxing officer casting them in that mould (r). It is a common usage in Ontario for auctioneers to put up with a half fee where no sale results ; say live or ten dollars in ordinary cases, in lieu of ten or twenty charg' when the hammer falls. [q) See Tomlin v. Luce, L. R. 43 Chy. Div. 191. (»•) See Walford v. Walford, W. N, (1889) 2S. ADVERTISEMENT. 93 Where the mortgagee himself is by trade ^^Ju? an auctioneer, there is less than no advantage to ^^^^^ — him in conducting the sale with his own voice, aSan°au^c^** he will not be allowed profit costs in the matter, '*°"*®''* either directly or even by employing his partners to conduct it (s). He should, therefore, avail himself of the services of another in his profession, though upon what terms of understanding need not appear. After the sale it is usual, and indeed very necessary, that the auctioneer should make a declar- ation, or at least give a formal certificate, setting forth the facts in connection therewith. (B) Advertisement. (1) III Newnpaper. 109. Theoretically speaking, the mortgagee- Not^eom- vendor is not bound to advertise the sale of the property except that be stipulated in the instru- ment (f). But — still theoretically speaking — he may do so in the exercise of his discretion, and his expenses both in inserting the advertisement and by way of law fees to solicitor or counsel for settling its form will be allowed him (//). 110. Indeed in practice it is exceedingly unsafe «»' very to omit advertising, which is taken to be one of the exertions which a mortgagee, acting in good faith (s) MathiBon v. Clark, 18 Jur. 1020. (() See Stickney v. Evans, 127 Mass. 202 ; also Davy v. Durant, 1 D. (!t G. & J. 535, as to private sale. (u) Marsh v. Morton, 75 111. 621. 94 POWER OF SALE. n?ni! should put forth towards the reahzing of a good price for the land he is selling [v). " He himself admits in his cross-examination that he never advertised the property," — such is one of the chief grounds for suspecting the propriety of a sale, set aside by Mr. Vice-Chancellor Mowat {iv). In Richmond v. Evans (ic), we find the following un- compromising statement on this question : — "It is the ordinary course before a sale by auction to give every publicity to it by advertisement in the newspapers and by handbills; I should almost have said it is the invariable practice. I think the sale in question is the only exception that has ever com^' under my notice. It is the course of this Court and practice of everyone who desires to get the best price that can be gotten for the property to be sold. It was hardly necessary to shew by evidence, what howev<'r has been shewn in this case, that persons would have attended the sale as bidders if they hud heard of the intended sale." Couteuts. 111. As to the contents of the advertisement, little said will suffice. It is not usual, where notice has been previously given, to name the mortgagee- vendors ; indeed in the case of loan companies this is very seldom done, lest the prominence of their names in the unpleasing sequel to a loan unrepaid might lessen the temptation to become their borrowers. Neither is it necessary to publish the ((") See Thompson v. Holman, 28 Grant, 35. (it) Latch V. Furlong, 12 Grant, 303. {x) 8 Grant, nos. ■ I fit' ADVERTISEMENT. 95 property under a full registry-office description ; it fJJJiS' is sufficient if it identifies the property with that " conveyed in the mortgage and described in the notice. Instead of long technical descriptions that may fatigue the public, it is found the better plan to emunerate the improvements and advantages of the subject of auction. Moreover, it is not the custom to state the terms of sale, or even that it is subject to a reserved bid ; the more economical method, being to put as little as may be in the advertisement that will not tend to the allurement of bidders. It is well, however, to fence oneself in against all attempts to hold stiffly to the advertisement as being a formal contract ; and so to add a reservation such as : "For further particulars and conditions of sale, apply to, etc." J i i.S . ■ I i 'r fc! t I '^i 112. The time — that is year, day of the month Timean.i and week, and hour of the day (/y), and the place **"•''• specifically, should be carefully and consistently set forth in the publication and adhered to on the day of auction (^). Blunders such as pinning a wrong week-day to the day of the month, or proclaiming the sale for a Sunday (a), or appoint- ing it for a place that turns out imavailable for the l-H ■i ; iy) See Meier v. Meier, (Mo.) U> S. W. 22.3. (z) See Richards v. Finnij^an, 45 Minn. 208. Where a difference of 15 minutes was held fatal ; the Americans being rather more strict than our judges would be unless damage were proved. (n) Sayles v. Smith, 12 Wend. (N. Y.) 57 ; sale on a holiday may bu valid, Stewart v. Brown, (Mo.) 16 S. W. 389. ff ' i : r ! I; F^ 06 POWER OF SALE. iw'm" purpose (b), — such blunders may sometimes be ' repaired by a postponement (for say a week) correctly advertised ; or where advertisement was stipulated in the instrument, perhaps much better by beginning? the publication over(f). In any case the test of a fatal blunder in the advertisement is, — according as the sale is future or past, — will, or did it deceive anyone ((/)? What in- terval between advertipe- liieiit and Bule. 113. Objection has sometimes been taken to a sale because, so it was alleged, it was proceeded with after too great an interval from notice or advertisement. Now it inay be ol)served, that it is not the temper of the courts to be too exacting about lapse of time after notice given. In one case a six months' notice was given in July, 1853, and a valid sale held in May, 1H57 (e). But an advertisement must — in the nature of things — not be allowed to cool before sale takes place ; otherwise, the object of advertising is frustrated, and a useless expense has been loaded on the estate. What would ])e the extreme limit after which the memory of the public would be taken to have lost hold of the coming sale has not been fixed, and would, in each case, depend on the nature of the {h) It is a very common American practice to provide that the sale shall take place " at the door of the Court House," a custom that has been blessed with a teeming fecundity of judicial decisions. For instance, the late cases of Howard v. Fulton, (Tex.) .4 S. W. 1061 ; Johnson V. Cocks, 37 Minn. 530; Davis v. Hess, (Mo.) 15 S. W. 324; Stewart v. Brown, (Mo.) 18 S. W. 389. (c) See Jones 1931 ; also Wolff v. Ward, 16 S. W. 161. (d) Bacon v. Northwestern, 131 U. S. 268. (e) Metters v. Brown, 9 Jur. N. S. 958. AhVEliTlSEMKST. \)1 DtH'lnra- property and the i)ul)li(' to whom the particiihir JJglJi" adveitiseinent appeals. It has heen liehl that the salt' need not he witliin a week nfter the hist insertion ( /"), hut in ordinary cases it would not he prudent in ii vendor, or fair to his mortgagor, to allow more than it fortnight or three weeks to elapse from such last puhlication. 114. Many of the ohservatu lis already made concerning tlie publication of notite are applicable to this matter also, both as to the choice of papers, I heir issues, circulation and the rest, and as to the necessity of care in not cutting too closely any stipulated period of time. It is usual to prove the'*"" fact of puhlication by a declaration of the solicitor Of other person who atteiuled to the same. (2) FoHtet-H or liaiulhilh. llo. Another method of advertising — which, likewise, is sanctioned by the practice of the Court in these matters, (by which practice it is always safe to be guided), — is by the distribution and pasting up of handbills and posters ((/). These arc usually affixed to the premises to be sold (//), and to the dead walls of the town or locality where the sale is to be held. How many of them, is a matter of discretion; a hundred of them is anii)le ; l)iit it seems seventy-five or even fifty will not lu' thought too few {jj). Frequently, also, it will Hiiw iniiiiy l)06tlMS. m t . i\ ^ 'W ^ *: t i 1 ,' lit •; (.0 Atkinson v. Duffy, Ki Minn. 45. ill) Thompson v. Holman, 28 Grant 35. (/() Chilton V. Brooks, (Md.) 10 Atl. 273. H.P.8. — 7 W f: >^> n~^ 1)8 POWER Oh' SALE. nJ-ue' 'I'lPP^'^ ^^^'^^ ^l^^' nO<><^ to arise from posters in the town wherein lie tlie premises, would he very inconsidenihle in tlie way of attra(;tin<( hidders — for instance, where an expensive factory property is being offered, or a property quite out of the or- dinary line of re(piirements of those who would he likely to see the posters where they are aflixed. In sueli cjise the money, that would i)e spent for placard and hill-poster, had hetter he spent in judi- cious advertising^" in papers that will more likely bring a return on the day of auction. Lt is usual timi ryV.iii- to take and preserve evidence of the posting of bills, poster. in tlie form of a declaration by the bill poster. (8) Notice of Sale to Interested Parties. IK). Where there are subse(|uent incumbnmceis and execution creditors, even though there be no provision for notice in the mortgage instrument, and apart from the necessity or non-necessity of notice of intention to sell, it is still debatable whether the mortgagee-vendor has done his proper duty in the direction of realizing a fair price, when he has not given to such interested parties, in some form or other, notice of the titnc luidjjlace of auction, so as to enable them to bid if so disposed. Doubtless the act of advertising will raise a strong presump- tion of such parties being sufficiently informed, yet it is the custom of many solicitors to make doubly sure by mailing to all interested parties (and sometimes by registered post) copies of the ^ ^ Ain'KitTisr.uiisr. 09 iidvertiseiiit'iit or posters (i). And this iiietliod ()\' ^JJI^J' iittractiii'' attention to the sale may liave the further ,,. , . . virtue of estopping' the parties wiio are tluis notit'd, !,7 !nu.Hl!i, from sprin/^iii^' to their feet after tho sale tiud ohjecMn;^" to advertisements and other profeedin<,'s that they liad sanctioned l)y ae([nieseence (J). (C) Conditions ok Salk : S\r,K iiv Lots, ktc. (1) J)t'j)n'cliifi)ri/ ('oiiditioNS. 117. It is hardly re([uisite here to add a whole chapter on the subject of conditions of sale, which is a l)ranch of law that has been very fully treated in a great many works on Keal Property Jind Con- \eyancing. It is proper, however, to advert to a long time inlirm, and now, to all purposes, dentl application of trust law to the duties of a mort- g.igee-vendor. Tt was commonly said that too „,.,„.,,,.i^. stringent or "depreciatory" conditions of sale, auums.''" l)eing calculated to les^sen the price, were good ground of objection to the validity of a sale. The courts exhibited considerable caution in the appli- cation of this doctrine, and re(inired a strong case before they would interfere. Thus where the power provided for the sale " together, or in lots, and subject to such special or other conditions of sale as the mortgagee should think fit ;" and there was a condition of sale, that the title was to begin ' (i) See recent case of Ritchie v. .Judd, (HI.) 27 N. E. 082, for discus- sion of failure to give personal notice to the mortgagor, of a sale on pub- lished notice. 0) Ferrand v. Clay, 1 -lur. 26.5. /fit ii ! iji i i|! R-, ' m 100 POWER OF SALE llrill "^ 1^^^' (^^^ ^'^^® ^^"^^" "^ l«5o), and that all — — " recitals in instruments 15 years old were to be taken as proved, and that the purchaser was not to require evidence as to the identity of the parcels — in this case, in view of the facts, the court declined to say that the conditions were more stringent than the state of title demanded (/.•). Kescission clause. Vice-Cliaii celloi- Kill- (lesley's iuil{,"iieiit. 118. It is now our common, almost matter of course, condition that in case of any objection which the vendors shall be unable or unwilling to remove, the vendors shall be at liberty to rescind the sale and return the deposit without interest, notwithstanding any steps taken to clear up the objections. It was this clause in the conditions that brought forth from the bench certain considerations of the scope of that doctrine of depreciatory conditions, that may properly be (juoted here without apology for their length ; — "Now it is said tliat that condition is depre- ciatory—that its tendency is to operate in two ways. First of all, its tendency is to diminisli the number of persons who will be williug to bid ; and secondly, even to those persons who do come and are willing to bid, it will be an inducement not to give so high a price as they would if such a con- dition were not imposed. Now that is the way in which the condition is said to be depreciatory. * * It does not follow that certain conditions, the effect of which would be that you realize tiie (A) Kershaw v. Kivlow, 1 .Jiir. N. S. \il\ ; see also Mutthie v. Edwards, 11 Jur. ."104 and 701. COXDITIONS OF. 101 utmost at the sale, are tlierefore always necessarily \\*J\°°' the best for the mortgagor ; for the conditions may be such that, after selling for what is a good price, you may incur immense expense, and after all fail in enforcing that contract, which would be to the detriuient of the mortgagor or the person interested ill the Stile. * * It (the condition in question) i> ;i very ordinary, reasonable, wise, cautious, and a })ru(lent clause for an absolute owner to introduce when he is selling." ' * It is an improper (•(jiidition " if it tends to the detriment of the mortgagor, as it would tend to the detriment of an iibsohite owner; but, if it would be prudent in ;iii absolute owner, it is not imprudent as regards !i mortgagor. * * If you consider for a iiiniiient every condition which tends to put any fetter ui)on a purchaser wliich he would not be subject to without it is a depreciatory condition. * * But admitting that its tendency, giv- ing due meaning to the word ' tendency,' is to deter purchasers, and that its tendency is to deter individuals from bidding so high as they would — adnntting that it is not ' depreciatory as to be improper, provided it is, upon the whole, a prudent, wise and proper thing — when an absolute nvner is sclHng, it is therefore prudent and proper with respect to the sale of the property of these mort- giigees" (/). Hi). Let us note, in i)assing, that this clause as He^'^'^sion ' i "' clause not to rescission does not give so absolute an option to '''"*"'"'®- the vendor, as its face would warrant. It is (l\ Falkner v. E(juitable, 4 Jur. N. S. 121 1. Sir U. T. Kindersley, ''■.('. : hut see Dance v. Goldriiijharn, L. R. 8 Cli. App. itO'i. ;:i^ 102 POWER OF SALE. iiSr necessary that he should give the purchaser the right to waive his objections {in). Nor is it open to the vendor, in the face of insuperable objections, which he knowing yet does not disclose, to put the purchaser to trouble and expense — and when found out by those objections, then by tlie aid of a rescission clause, to pick tlie lock of his agree- ment (//). -A V. c. 10, K. H. 120. Attention may prolitably i)c drawn to the provisions of the recent Act, 54 ^'i(■t. c. ID, s. JS. 13y tlnit Act no sale by a trustee — whicli is made to include a trustee by construction or im])licati()n (o) — shall be impeached, on the ground that the conditions " were unnecessarily depreci- atory, unless it also appears that the consideration for the sale was thereby rendered inadetpiate," or after conveyance executed, rendered inopenitive as against the purchaser (who himself is debarred this ])et objection), unless collusion appears. Now, as it was only through the door of trusteeship that this vexation came upon the mortgagee, it is per- haps only fair that by tliat egress it should likewise d(^part. For the rest, the duty and right of tlie mortgagee in this regard is still best expressed as above stated, to the effect that whatever con- ditions would be availed of b}' a prudent owner, of these also a mortgagee is entitled to the use and benefit. (m) See In re Jackson v. Oakshott, L. R. 14 Ch. D. SjI. (n) See nownian v. Hylaiul, L. R. 8 Ch. D. ">88 ; Neltliorpe v. Hol- gate, 1 Coll. '20.\. (o) Rec. 2. The principal provisions of the Ontario Statute are taken from the (Imp.) Tnisti-e Art, LW8, r>l A ','2 Vict. c. ">'.•. COSDITIOXS OF. 103 (2) Sale h/j Loh. Sections 121-122. 121. Whether the property liud better be pntl;^,'^*''^ up in its entirety (j>), or offered in separate lots, is, under ordinary mortgages, matter of discretion ill each case (q). As tlie sale of a portion under power is no release of the remainder from the mortgage (/•), it is open to the mortgagee to sell the land by distinct i)arcels, either all at one auction, or some now and otliers again, until the (l('l)t be extinguished. r()ssil)ly even it might be ii ground for complaint, cutting to the root of the sale, that a property was improvidently, or against the spirit of the power (.s), put up in the aggregate, which, if sold in lots, might have brought hand- some prices {/). 122. Onthe other hand, it would be imprudent to or in iinnp. sul)-divide property where the severance of portions would materially injure the rest (//). Nor is it necessary or wise to auction undivided interests where the whole might be conveyed, although to so convey would require the joint exercise of :■ ii' 1 f ' ■ 1 s I ip) Mortgagee may advertise whole property for sale even wliere it is likely a portion would suffice: Cleaver v. Matthews (Va.), 3 S. E. liV.I. {(/) Cf. Loveland v Clark, IH Pac o44. (/•) Gowland v. Garbutt, 13 Grant, tilH. (s) Hull V. Kin«, 38 Minn. 34'.». (t) See Richmond v. Evans, H Grant, oOH. But see Adams v. Scott, 7 W. U.'217 ; see also, for late cases in American law, Stockmeyer v. Tobin, il Sup. Ct. Rep. (U. S.) o04 ; Larkin v. Bronty, 3'.> N . Y. S. R. H7!) : Harris V. Crevelin^, (Mich.) 45 N. W. 85 ; Holmes v. Turner's Falls L. Co., 1,".0 Mass. 535 ; Bof^arth v. Larf»ent, 1*28 HI. i^"). (») /'/'.,';., a railway property ; Wilson v. Atlantic ct 1{. A. Line, 2 Uoods, 447. ^ 104 POWER OF SALE. 122*123' ^is^i^<^^ powers of sale given by dift'erent instru- inents {v). There is, however, no fixed rule in England or Ontario for or against " lump " sales i^w). Dei)osit iif 10 ixn- cent. (D) Tehms of Pavmhxt. (1) DcpOHlt. 1*23. One of the most ordinary precautions taken at a mortgage sale is to require a purchaser to make deposit at the time of sale of a percentage of his successful bid. The commonly named deposit is ten pei cent, ; tlie same being tliat pi'ovided for in the standing conditions under whicii sales l)y the Court are held (./). That there is no arbitrary rule in this matter may be drawn from the decision in Farrer v. Lacy (//), wherein are discussed the object of deposit, what amount may be fixed, and whether, once fixed, it may be altered. The decision is as follows : — " The mort- gagee selling under his power of sale had power to fix what sum he liked as being a reasonable deposit. He did fix ten per cent., whicli no doubt is a large sum when the purchase money is large. The deposit is intended to be a guarantee for the purchase being in good faith, and that the sale is intended to go on, and is likely to go on and be (v) Hiatt V. Hillman, 19 W. R. (l'.»4. (ic) Cf. Adams v Scott, 7 W. R. 217. For contrary practice followed n some American Courts, see Rowley v. Brown, 1 Birn (I'a.) 01. {x) C. R. p. 193, Form 43, condition 4. (i/) L. R. 25 Chy D. <'.41. iu:i TKRMS tiF PA YMK.ST. 105 (•(jncliided. li" he had fixed a smaller siuu, say five ^„^„H''°^ ' '^ 123-124. per cent., for property of this character, nobody could have said that the mortgagee had gone out- side his power or acted improperly. Having fixed ten per cent., the question is, why was it reduced ? * * In other words, the object of reducing the deposit was that a person that cotdd not other- wise have l)ought might be induced to bid, and possibly l)uy the propeity. That seems to me to have been perfectly reasomible and proper on his pai't." i " u 124. Whether it is proper for the auctioneer or;j^;i^!;; other agent for the vendor to take a che([ue for the deposit instead of cash (,c) was also mucli discussed ill the same case: " 'I'iie auctioneer received instead lit' li, ()()() in cash a checpie for the amount from a person whom he did not know(«); and that ciie([ue not being paid, the sale became abortive, and there was no fund to provide for the costs so incurred. * By the evidence it is shown to be the universal practice, not of owners in fee only, but nf everybody selling houses or land, invariably to receive the deposit by means of a che(pie. There are obvious reasons why it might be very incon- venient to adopt any other course."' Tin's case was appealed, and from the judgments approving the previously cpioted opinions, we may with profit for m I!) Cash sale i;rcviJed in power, and aiiuonncement at auction that only «okl, silver and le^al tender would be received ; see Lallance v. Fisher, 2 S. E. 775. (rt) See [h. as to impossibility of obtainiuf^ references (at time of aiutionl as to tlie purchaser's at;ent. •i] Ml I: \T^ 106 P()]VER OF SALE. Sections 124-126. quote several passages that throw further hght on these (|uestions of deposit. " Moreover," says Lord Justice Baggallay [h), '' I am not prepared to say that a mortgagee -vendor is bound to require a deposit at all from a bidder; for it is open to him to sell by private contract, in which case no deposit is, as a general rule, required. No doul)t, the custom, which has almost the force of a rule, is to take a deposit on sales by auction, l)ut it is an equally prevalent custom to take a chetpie for the amount." From Lord Justice Bowen we have the following. It is "a well-known propo- sition of law — that an agent, for the purpose of receiving money, has not an unlimited authority to receive payment in any mode which he may choose, but is ordinarily deemed to be intrusted with a powei" to receive it in money only (r) ; in other words, that an agent being authorized to receive a bird in hand, is not authorized to receive a bird in the bush. But that proposition of law has nothing on earth to do with this case, the only question to be considered being whether what tlie plaintiff Farrer did was reasonable in the case of a person who was acting in interests other than his own." KlTfct of dishonor. 125. To the objection that the taking of a cheque, which was subsequently dishonored, ren- dered the sale abortive. Lord Justice Fry, in the same case, replied, with something of casuistry, (/-) Ih. L. R. 31 Ch. D. 42. (c) Cf. Horsey v. Hough, 'AS Md. 130, which proves that a sale for oash does not necessarilv mean cash " on the nail." mumM ^m TERMS OF PA YMKNT. 107 that this was not true. " The only thing it did J|^*J27'* was to conceal for one day the fact that the sale was abortive. " In this latter connection, it may 1)6 noted that the effects of a dishonored bill or cheque, in the direction of stopping proceedings, were considered in Wood v. Alurton {d), and found to be : 1st, that the giving of the bill suspends tlie remedy by sale and the running of the uotice; and, 2nd, that both revive when the bill is dislionored. 120. Not unconinionlv, the dei)osit is, by the i^»i:"^it • ' J- • with c'uiditions of sale, made piiyable to the vendor's *'"'''''""' s(jlicitor, a practice that argues souie confidence in the solicitor, who, in rare cases, has abused it and absconded. A complex case of this was Barrow v. White (^^), where, in a sale by a second mortgagee, a solicitor had so absconded ; and it was vainly attempted to make accountable the first mortgagee, who had joined in the sale, conveyance, and receipts for purchase money. K \V^ ^ \'h^ (2) Credit. 127. ]\Ir. Jones, in his book on Mortgages, has, in effect, stated the law on the subject of giving credit to be that, where credit is not expressly authorized by the instrument, it is not permissible for the mortgagee-vendor to give a term of credit for a greater sum than the amount due him. But where the power of sale provides for a discretion, —cash or credit, — that discretion he must use fairly, but nuiy When cifilit may lieKiveii. h ! (rf) 47L.J., Q. B. D. 191. (e) 2 John * H. .580. -m n^^^ 108 Sections 127 128. m- Ijillllt of rtiKcretiou. POWER OF SALE. sell Oil credit wholly, if in good faith and for the henefit of all concerned (/). This is in the main a correct and reasonable statement of the law. Vn- douhtedly the absence of express mention, in the power, of sale on credit will not so iiol)l)le the dis- cretion of the vendor tliat he cannot leave a portion of the pnrchase money ontstandin^' on mortf^'an'c ((/). But if the sum for which the land is sold is greater than the sum secured by tiie mortgage under which he sells, he is lia))le to pay in money the sm-phis to the owner of the equity of redemj)- tion, or otlu^'r entitled party (//), « 128. l)y gt)()d fortune ^Ir. Jones' statement cm be applied to Ontario law without much modihcn- tion. Mr. ("hancellor Boyd has indicated the scope of the vendor's discretion in these terms : — " The cases cited (/) sliew that tln^ mortgagee c;in sell on time under a statutory power of sale with- out the mortgagor's consent, provided he credits the price as cash. The reason is that he can deal as he pleases about giving time on his own del)t and if as to any surplus lie accounts forthwith to the mortgagor and pays him cash, tht>t removes any objection on the part of the latter, that the sale should have been a cash sale. If the mort- gagor consents to a sale on these terms he is precluded from claiming the surplus in cash." * * (/) Jones 4tli ed. 1H()H.1872; Maikey v. LauHley, 92 N. S. 142. {g) See Thurlow v. Mackeson, 4 L. H., Q. B. '.(7 ; Hee also liettys v. Maynard. 4!t L. J. 88!). (/() Bailey v. /i:tna Ins. Co., 10 Allen 28(). (i) Davey v. Durrant, 1 DeG. iV I. ')'}'^ ; Tluirlow v. Mackeson, see yiipra. ii illi p()STP<)M:.\n:sr. 109 Without a distinct b.ir'oiin witli the iiiort^^Mfjjor the ^®°H°oa' iii()rt^^Hj,'ee "cannot cash such a security and cliar^e - — — tlie mortgagor with the expenses and discount (/ )." It shoukl be remembered also, in such cases as these, that, where the transaction is yet incom- {)lete, the mortgagees are chargeabh' only with what they have actually received from the i/ * piu'chaser (/.) ; and mere delay in closing does not come to be giving of credit {/). And in general it may roughly be put that the payment of the purchase money is business between the purchaser and mortgagee, and is no concern of the mortgagor so long as he obtains tlw credit and benefit of tlic amount bid {m). (E) Postponement. 129. There is no compulsion ui)on the mort- .^'"^ o''''«*- gagee to postpone or adjourn the sale for the sake^'"'"''"""'' of a possible increase in the amount bid, the rule Ix'ing that if, in exercising the power he lias acted IxitKt fide and taken reasonable precautions to ()i)tain a proper price, the mortgagor has no redress even although more might have been obtained for the property if the sale had been postponed (//). Of course the want of i)idders, or a highest bid ^'1t: (/) Beatty v. O'Connor, "> O. R. 731. {k) Bank of Upper Canada v. Wallace, 1(5 Gr. 280. (/) Strother v. Law, oi 111. 413. (m) Mewburn v. Bass, 82 Ala. (522. (h) Cholmondeley v. Clinton, 2 Jac. & W. 1 and 182 ; Warner v. Jacob, L. R. 20 Ch. D. 220. no POWEH OF SALE, 129S" ^^^'y '^i^i<^*Ji below the true value (o) uuiy render untveTi.ior*'' '^'^^'^ '^^ ^^^^ tuxK' jidvertisecl an impossibility or '""^■'^" '"•inii)ropriety; l)ut then it is a matter of discretion under the ordinary form of power, whether he shall adjourn the sale or sell by private contract. Nevertheless, a sale may be adjourned more than once if in the reasonable discretion of the mort- gagee it seems tit to do so (^>). Where it is adjourned, the time and place to which adjourned should be announced on the spot and advertised. The advertisement while not necessarily so minute as the previous ones (7), should be accurate, and keep to the date and place announced at the time of the postponement (y). (F) Fau^nkss of Sale. Onus on- iiiortKitHt'o 180. The onus of supporting the sale as a hoiia fide exercise of the power is, of course — as stated in a great many cases — on the vendor as against both mortgagor and purchaser, and on the pur- chaser as against the mortgagor. There are certain acts and combinations, l)oth between the vendor and others, and between third persons, which, moio or less, go to the fairness of the sale, and should, therefore, be briefly mentioned here. Some of these acts, such as bidding by puffers at a sale (o) Thompson v. Holman, 28 Grant 3.5 ; Cf. Clark v. Simmons, 1")0 Mass. 357, where only one bidder ; contra, Stevenson v Hano, 148 Mass. 616, where several bids. (p) Richards v. Holmes, 18 How (N. Y.) 113. (g) Dexter v. Shepard, 117 Mass. 480. (r) Miller v. Hull, 4 Dea. (N. Y.) 104 ; Jones 3rd ed. 1874. •p I'AHISKSS OF SALE. without resen'e, are dealt with in the Act rospoct- ing the Law and Transfer of Property (.s). In tlie same Act is inchided a definition of a sah» without reserve, and a direction as to liow to make the necessary reservation. 131. Interference with the ohtainnient of the liij^'hest possihle price niay proceed from eitlier the vendor or the purchaser. It does not seem that arranj^enients l)y the purcliaHcr to clear the field for himself are always ground for impeachin<>" the sale. "It is settled law," according to Chancellor Spragge {t), '' that an agreement l)etween two per- sons, hoth of whom are desirous of purchasing the same estate, that one shall abstain from l)idding (receiving therefor a valuable consideration), and leaving the field open to the other, is a lawful agreement, and the agreed consideration may be enforced." Ul Sections 130132. llicilts to cUniv tlio tU'I.l of hiildoiH. 13i2. Yet there may be other and less innocent acts of the purchaser having a bearing on the fair- ness of the sale. Thus, a bidder niav attend the sale, and by allowing would-be purchasers there present to believe that his intention is to purchase for the benefit of the mortgagor's family, so get the property for himself or for others than the family, ft seems, however, that if it was not through him, or through any wrong or act of his, that bidders were thus misled into a charitable supposition, the validity of his purchase would not thereby be («) R. S. O. 1887, c. 100, SB. 21 to 26. (() Campion v. Brackenridge, 28 Gr. 201. ActH of tho purchaser. TT 112 SectionB 132133. Acts (if till' moitniiHetv iiii));iir(ul (//). Another and more ohjectioimbU' case, is wlicretlic purcluiscr, iiavin^f ))r()miHe(l to make an advanceto the in()rt^oin in all this ; that the whole was a scheme to obtain the land for liiniself at an undervalue, in which case there would be the clement of fraudulent intent" (/•). ]]esides, if the purchaser does not content himself with tacit appeals to the generosity of rival bidders, hut makes plaint of his losses and so forth, he will not, on the sale's bein/j^ impeached, be allowed to keep his purchase (//*). WA. A secret arran^^ement by the mortj^agee to prevent competition at the sale, whether with the object of having the prop(»rty bought for him- self, or for the advantage of a party to the arrange- nient, is manifestly a ground for im])eaching the sale (./•). For it is the duty of the mortgagee to do all acts in connection with the sale with the view of obtaining the best price under the circum- stances. But an agreement that a third person shall bid a c(M'tain amount, without binding the hammer at that figure, and leaving the sale open, will not invalidate the sale, even if the "third person (ti) Brown V. Fislier. !» (Jr. 4'23. (t;) Campion v. Brackenridf,'e, 28 Gr. 201 ; but see Kuttan v. J^evis conte, 2 Chy. Cham. lOH. (w) Feiiner v. Tucker, (i R. I. Sol; cf. Benjamin on Sale, Hrd eii. p. 406. (j) Thompson v. Heywood, 1251 Mass. 401. s.u,/. in van ATE costuact. 113 looked over i\\v jiiort^'a<4[t't'"s sliouldt'i* and super- **^,"<»J1' 133-135. vised the notice of sale (//I. Moreover, it' a third - person, in no way co'^nizant of the scheme and having no reason to suspect the hoiin JuIch of the proceeding's — the same hein^' apparently regular — sliould intervene, and have the premises knocked (Iov;n at a smallish iigure, probahly by analoj^^y to lirown V. Fisher, cited above, the sale would stand ; and the mortj^agor would be remitted to his remedy against the vendor. 184. It is not to be supposed, however, that i»"yi"«ii' every avenue of profit is shut to the mortgagee by """■'*<**^''"- the responsibility of his position. It has been legally sanctioned in him, to buy in at a discount a second mortgagee's security, without obliging him to share with the latter his knowledge of the pros- pect of a successful sale (-r) — a line of conduct that would hardly be favored in one who could be fairly deemed a trustee for those interested in the equity of redemption. (Ct) SaLK by PltlVATE CoNTlJACT. 13'5. The connnonly used forms of power speak oi't';." "' for a sale by public auction or private contract («).{Jrivat*e To this efifect are the words of the larger clause i^^*'"""**'' (j/) Ritchie v. Judd, (111.) 27 N. E. (i8-> : cf. Santa Marina v. Connolly. iCal.) 21 Pac. 1093. (z) Dolman v. Nokes, 22 Beav. 402. (a) Where only public auction is prescribed there cannot be sale by private contract: Brovard v. Dnniaresijne, 8 Moore. P. C. 457. and rice vi'rsii. H.P.S. — 8 m ' ". M r< .'? Ill rOWKli OF SALE. Section » 136. Contract befiii'c expiry 111 notici". the Short Form Act, which are " by public auction - or private contract, or partly by pubhc auction and partly by private contract as to him shall seenj meet.'' Now, let it be remarked concerning that word "or" lying between "public auction" and " private contract," that this is one of those rare cases where judicial intelligence has interpreted from " or" a simple alternative. For in Davey v. Durrant (6), where a power was so limited, Lord Justice Turner thus postulated : "To hold that the mortgagee was ])ound in the tirst instance to put up the property for sale by auction would be to limit and cut down the power given by the deed, which expressly authorizes a sale by public auction or private contract ; and certainly I am not prepared to hold that a mortgagee is not justified in accept- ing a fair offer for the purchase of the mortgaged property until he has advertised the property for sale (r)." To go a step farther, it was decided in Major v. Ward [d), that a contract for sale of the property, although made before the expiration of the notice, was not therefore invalid. But presumably in Ontario our statutory embargo on further proceedings while notice runs, would threaten the validity of such a contract, which is effectively a very strong " proceeding " (e). At any rate such contract should be made dependent on J le continuance of default and were better post- dated after the time for expiration of notice. (b) 1 DeG. A- J. rm. (i) H»€ also Mowry v. Saiiboni, fls N. Y. lod; Rose v. Pa^e, (Midi. I 4t; N. W. 227. (dj 5 Hare 59H. (/) 11. S. O. IfWT. c. 102. 8. 30. ^■p^m .S'.ILK liY PRIVATE CONTRACT. 115 Section 136. 136. However jifood the decision stuiids in '-' Reasons l^ppn 'orholdiiif< yj ^> \_- I.X : J L)5ie, 20 L. J. N. S. 353. (/) See Latch v. Fiu-lonj^, 12 Gr. 203. (j) Warner v. Jacob, L. R. 20 Chy. D. 221. (A) Bettyes v. Maynard, 4i» L. J. 38<» ; Hool v. Adams, 128 Mass, 2.)7; Bailor V. Daly, 7 Mackey 175 ; Bowman v. Ash, 3tJ 111. App. 11"); Garitee V. Popplein (Md.) 20 Atl. 1070; Clark v. Simmons, 150 Mass. 317. Nor will sale be set aside on a guaranty of an advance in pric : Harris v. Genimel, \) 8. W. 37(». I'lUCl: : ISAI>rA^UACV 117 tiiiii' ill the view of e(|uity a fraud on the mort- ?*:?^2?" gagor (/)." uni- noes. 18B. Indeed an inadequate price obtained by ai'ia^e- mortgagee on sale of the mortgaged property, taken ;,'|^4^j'j ill conjunction with the other circumstances of the *"'""' case, is often strong evidence of negligence or hieach of duty on his part. This subject has received very careful consideration in Latch v. Furlong (ni), where the defendant being of the view that " all he wanted was to get the money (liie him and he would let the property go," was r.ot sorry to accept the oiler of one Joy, the first that was made him and which he acted on without troubling himself to advertise the property (7/), or i:ive notice of sale. The price thus received about covered the amount due him, but was far below the \alue of the premises. Mr. Vice-Chancellor Mowat in a very elaborate judgment avoided the purchase — on the ground that, being under obliga- tion fo act (IS (I pnulent ointcr ironhl nnd jnevnit a sacrifice of the property, the defendant had acted improperly. The learned judge did not, however, depend entirely on the inadequacy of price. " Had (/) Davey v. Durrant, 1 DcG. A- J. oio ; Latch v. P'uilonf,', xiipra : ( iiiwford V. Mekliiim, .i V. C. App. ii; 01i\er v. Court, H Pri. 1()5; 1 1 cniiis^^oii V. Holman, 28 Gr. 35; Kiiiji v. Bionson, 12'2 Mass. 122. For iiniounts held not such a mi'oss inadt(iukcy : see Stoffel v. Schoeder, (\2 Mo. 147: Lallauce v. Fisher, 2 S. E. 77."), (where sale for half valun). (»i) 12 Gr. H03. (n) Case cited. Marriott v. Aiiclior Kevtrsicnary Co.. 7.Jur. N. 8. LW. 118 POWER OF SALE. S'ctton the mortgagee used any exertions or in the absence of such exertions liacl there been any contrariety in the evidence as to the fairness of the price, 1 might have found reason to hesitate before avoid- ing the purchase." On the whole we may say withVice-Chancellor Spragge : — "The great under- vakie especiallij when taken in connection icith the place and manner of conducting the sale are matters to be considered " (o). (o) Spain v. Watt, 16 Gr. 260; cf. Fowler v. Taylor, 1<» Wash. L. Rep. i;51, (inadequacy phis unsuitability of hour). CHAPTER VII. PURCHASER AND CONVEYANCE. (A) Title of Purchaser. 189. It seems to be supported by authority section that, whatever ri^^hts the hammer of the auctioneer "'" ' if;! i:^^- and the agreement at the time of sale may give tit/e veetT the purchaser against the vendor himself, yet the auction alone does not vest the estat*^ in the pur- chaser, nor, perhaps, does the title pass until the execution and deHvery of the deed of convey- ance (a). But this law is doubtful enough (h), and can be relied on only this far, that the power is but incompletely exercised until the purchaser has his deed ; whereupon he becomes entitled to posses- sion (c), and the mortgagor, if still sei/ed, becomes his tenant at sufferance {tJ). The title is — as far as the mortgage goes — a very absolute one, the instru- ((«) See Tripp v. Ide, 3 R. 1. 61. (b) See Mewburn v. Bass, 82 A.la. 022 ; Durden v. Whetstone, (Ala.) H So. 176, (where it was held that the equity was cut off by sale, before conveyaroe executed). (c) Lydster v. Powell, 101 Mass. 77. (d) Kinsley v. Ames, 2 (Met.) Rep. 29. For remedy of purchaser where mortgagor collects rents after sale, see Hatcli v. Sykes, M Mass 307. m M 120 POWlAi Of SALE w9-i4i'' ^iJ^iits creating and effecting the power being, as it Lord Cran worth's Act. were, drawn together into one indenture, so that the title is freed from all incumbrances since the creation of the power ie), and carries all rights and easements then appurtenant when the power was given ( /■). This is perhaps to be taken with an exception, namely, that a solicitor's lien on the title deeds will still attach after the property has passed from his client by sale under power (jj). 140. Several (piestions have arisen as to the extent of the title that may be conveyed under Lor 1 C . jrth's Act iji). It seems that where the sec . y l,, a deed of ecpiitable mortgage, there is power in the equitable mortgagees to convey the dry outsfcai. "ing ,;al estate (/). Likewise, under a mortgage of kaseholds by underlease, there is power to sell the whole of the original term [j). \Mien the purchaser is recalcitrant and refuses to complete the purchase, an action by the mort- gagee will — as with other vendors — lie for specific performance (/.•). (B) Conveyance. comey-" I'll- The couvcyauce may ordinarily be made ancemade. ^^ ^j^^ purchascr or whom he directs. Thus, in the Short Form Act, the power is "to convey and (e) Doolittle v. Lewis, 7 Johns. (N. Y.) Ch. 45. (/) Bull's petition, 10 Atl. 484. {g) Gill V. Gamble, 2 Chy. Cham. 135. (/() See 42 Vict. c. 20. (Ont.), or R. S. O. 1887, c. 102, part II. (repealed in England). (() In re Solomon A Meagher's Contract, L. R. 40 Ch. D. 508. (j) Lord Cranworth's Act. sec. 15; Hiatt v. Hillman, 19 W. R. 694. (A> See Phelps v. Prothero, 17 L. J. N. S. 404. Specific lierforui- ance. ■w COSll'YASCi:. 121 assure the same when so sold uuto tlie purchaser or Jl^.^4^ purchasers tliereof, his heirs and assigns, or as he, >he or they, shall direct and appoint." Without Hssunjin*> responsil»ility for this grammatical con- struction, it may l)e said that the power is wide enough to cover any appointee or assign of the purchaser. In the event of the purchaser dying in the interval hetween sale and completion, the deed might be made to his personal representative, as representing his '' heirs and assigns,'' i.e., to his executor (7) or administrator. If, however, the (•(inipletion were delayed beyond one year from (Itath, in that case, doubtless, it might be con- tt^nded that ■)4 \'ict. c. ID, (Ont.), s. 1, would vest the right to the conveyance in the devisee or heir of the deceased. i J 14'2. As to the contents of the conveyance C'^"'e"ts. uiuler power, more or less than what an ordinary deed should contain, the first requisite of the former is that the intention to sell under power should be manifested in the words of the instru- ment ( )}i). This is usually effected by recitals, as to which it is sometimes by the terms of the power provided that the deed shall be evidence thereof ; for otherwise it is not (//), or, at most, prima facir ' evidence thereof (0). Attempts have from time to time been made to make the absence or insuthci- (/) See Lewis v. Wells. .50 Ala. 198. (m) Pease v. Pilot, 49 Mo. 124. in) Jones, 4th ed. 189.> ; Vail v. .Jacobs, 02 Mo. 13. (o) Ingle V. Joues, 43 Iowa, 280; see also R. S. O. 1887, c. 112, s. 1 (1). 122 POWEli OF SALE. «oV?^" ency (/>) of such declarations of intention to use " tlie power a /). of the mortgagor joining in the conveyance does not make it a conveyance of the equity of redemption (r), or prevent it in any way from being a conveyance under power. It was found necessary, recently, to emphasize this in a case (/r) where the agreement being for a conveyance under power, it was contended, imsuccessfully, that the joining of the mortgagor — to obviate certain defects of title — was really giving the purchaser what he had not contracted for, and therefore broke the agreement. On the other hand, where the mortgagee cannot give title, the purchaser is not bound to keep the matter open until the mortgagee has secured the concurrence of a third person (r). 144. The case of a lunatic vendor under power ^^^Jija^tk gave some trouble in the English case, In re Harwood (//), the court, while directing the com- mittee to sell, yet refusing to make a direction as to the conveyance, and leaving the transfer of the legal estate to be dealt with under the Trustee Act, 1urchaser and tlu; mortgagor, as we do here, there is no occasion to resort to any such doctrine, hecauso the ohvious meaning of the whole transaction is that the pur- chaser is to he safe, if a hoini Jiilc one, without making any incjuiry. If the mortgagor loses his estate through the misconduct of the mortgagee in selling when he has not the right to sell, his only remedy would be against him personally for damages." 148. There are two (dasses of such protection clauses : (1) Where a sale being proper the pur- chaser is relieved from incjuiry into the regularity of the proceedings; ['!) Where in addition, he is relieved from inquiry into the propriety of holding a sale at all, or into the existence of default. The clause quoted by Jessel is of the stronger sort. Where the protection of the clause only extends as far as the first named class, then the purchaser imist satisfy himself that default has breathed life into the power C/), but under the latter class no inijuiry need be made or default exist. 149. The remedy of the mortgagor under either sort of clause, where for instance, the stipulated notice has not been duly given, is by action for Section! 147-149. Two classes of sucli clauses. Ueiiiedjr of mortRaRor. (/■ See Ford v. Heeiey, :{ .Iiir. N. S. lllti. 128 FoU'lili i>h SALE sectionB (ljiiiia<'es ii^^ainst the iiiortj^a^eo, the court havini: no jiu'isdiction to restrain him from selliiij^" without ^•ivin«4' the re(|iiired notice {()). There is also this finther remedy, namely that the mortya«,'or may attend the auction and hind the purchaser with notice (//): Effect of loO. The })rotection of sucli clauses goc>. indeed, no furtln'r than to cover a hoita fi'/' purchaser. (Generally speakin<^', either where the purchaser, hy actual notice or information, knew ot irregularities in the proceedings, or informalities : or where, on the face of the instrument, tiiere is rc- ((uired some condition het'ore sale that he nnist have known could not have heen fultilled, cj/. the etfiux of three months' default, which time had not passed since the period for payment (/) ; in either case, the purchaser could not take benefit of the right of non-in(]uiry. "If the purchaser knew as a fact that those things which ought to be done had not been done, she cannot be allowed to say that the sale was regular ; she cannot be allowed to say that the sale was properly made in exercise of the power, if she knew that the three months, which were reipiired, had not passed" (y). Thus, too. actual knowledge that proper notice has not been given will bind the purchaser ; and not only may the sale be set aside, but perhaps even the UKiht ■in) Pricliard v. Wilson, 10 .lur. N. S. 830. (/() Jenkins v. Jones. «1 Jur. N. S. H'.tl. ((•) Selwyn v. Garfit. L. U. ix Cliy. D. 2>*•^. U) 'f>- See further. Chapter X IRRKGULAJIITIES. 129 1B0-1S2. tide purchaser be brought to an account of his secuons possession (/.•). 151. Jenkins v. Jones (/) is a case on this sub- jt'ct. There the mortgagee, after the tender of his debt, having sold under power to a purchaser aware of the struggle to redeem, the court set the sale aside, declaring that a purchaser who buys with knowledge of circumstances sufticient as against a mortgagee to invalidate the sale, becomes a party to the transaction, and is not protected by the proviso that the purchaser need make no in(iuiry I///). The terms of tlu! ujortgage may go yet a step further in providing that express knowledge will not affect the sale, but that the sole remedy will be by damages ; for such a provision is strictly within the contractual rights of the [)arties («). i:'- (3) Solicitor for both Parties. lo'i. Reference may here be made to a cir- ^oi's^'toi- «' lor both cunistance which, as often as it arises, not only may i'*"'****' !)(' a source of irregularities or unfairness in the sale, but is also likely enough to affect the purchaser with notice of any irregularities that may exist. This circumstance is the fact of one solicitor acting both for the mortgagee-vendor and for the (A) Parkinson v. Hanbury, 1 DeCl. it Sni., 14H (/) ('. Jur. N. S. 3!ll. (m) See Thomas v. Davie, '.) W. R. 8H1, for effect of ri^ht of tenant 1h in^ known to purchaser. (ii) See Prichard v. Wilson, 10 Jur. N. S. 3S0 ; Grant v. Canada Life, 2". Gr. 2.5(5. a.i'.s. — 9 n M' r I" 130 POWER OF SALE. Sections purchaser. "Solicitors tluis actiii'^ place them- selves in a situation of ^reat emharrassiiieut, and such a state of circumstances recjuires strict inves- tigation ; for while, on tlie one hand, as acting foi' the mortgagee, the solicitor's duty was to obtain the best price ; on the other, as acting for the purchaser, he would try to gi't the pro})erty at tlic least price "(o). Similarly, too, there may be com- plications where the same real estate broker acts for two parties. As in llitchie v. Judd (y>), the mortgage security was in the hands of the broker for collection, and the mortgagor also placed the property in his hands for private sale ; failing which sale, the broker sold under power, and was held not incompetent thereto from the sale being anv breach of trust. hale t(i II (D) PrUCUASE BY PAHTI(ir,M! PkHSONS. (1) CItnritlrs. 15^L There has not been displayed any great oi' peculiar leaning on tlie part of the courts in favor of a charity as a purchaser under power of sale. Thus, the generosity of the mortgagee in agreeing to st'll a site to a charity at a valuation, and to give the price to the charity, was no more appreciated than as a reason for declaring it an invalid sale under power {(/). The doctrine that a man should be Ju>t before he is generous applies with unabated force to this sort of proceeding. («) Jones V. Matthie, 11 Jur. 504. ip) (111.) '2!> N. E. 682. (q) Dttvy V. Uurrant, 1 DeG. A- J. 535. I'VUCIIASE j!Y PARTlCiLAR I'KHSOSS. 131 (2) Second Mortyagees. Sections 1S4-1S5. 154. There is no rule in e(iuity precluding a ^^?^1^,[;,"' second mortgagee, or other puisne incunihrancer, '""""*"^''' from purchasing at a sale under power held by the ih'st mortgagee ; nor from accjuiring by such pur- chase no less absolute a title, as against the mort- gagor, than would a stranger (/), Nor is he in any worse position than a stranger as to getting the property at an undervalue ; nor again will it matter if his own mortgage be in the form of a trust for sale, or if he himself be in actual possession when the sale is held (.s-). Parkinson v. Hanl)ury (/), is either not to be taken as an exception, for there the second mortgagee was not simply a mortgagee, hut the equity had been conveyed to him on trust for sale on default in payment of his debt; or if it does contlict with the later case above cited (.s), as to a trust deed being material, it must be taken to be herebv overruled. 155. The following vigorous declaration on this>V'V>',v^ ^ (juestion is to be found in Watkins v. ^NIcKellar {u) : *'The proposition that the defendants, being mort- gagees, were incapable of ac(puring an absolute interest in the property in (piestiou, proceeds, I suppose, upon this that a mortgagee is a trustee for the mortgagor, and incapable, therefore, of deal- (»•) Shaw V. Bunny, 11 Jur. N S. 99; see Harron v. Yemen, 3 O. K. 13H. (h) KirkwDod v. Thompson. 2 DeO. J. & S. 013. (0 2 DeG. J. & S. 450 ; 23 W. R. 331. («) 7 Grant, 584. fPFi 132 POWER OF SALE. Brown V. Wood- hOUKC. sectton ijig ^vith the estate for his own benefit. That a mortgagee is a trustee for his mortgagor in some sense of that word, cannot be denied ; but that he is not a trustee in the sense impHed in the argument, is equally clear. Had it been true that mortgagor and mortgagee stand to each other in the relation of trustee and cestui que trust, then all dealings between the mortgagor and mortgagee in relation to the equity of redemption must have been regulated by the rules applicable to dealings between trustee and C6^s'f/^i que trust; and upon the same assumption every purchase of an incumbrance affecting the estate made by the mortgagee nmst have been held to be a purchase for the benefit of the mortgagor. But the falsity of both conclusions is apparent. And if it bo true, as I apprehend it is, that a mortgagee is allowed to deal for the equity of redemption as a stranger ; and if it be clear, as it no doubt is, that a mortgagee who gets in an incumbrance affecting the 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 'd puisne incumbrancer incapacitated from purchasing the estate upon a sale by a prior mortgagee, under ;i power in his deed(i")." Brown v. \Voodhouse(i/), is a very strong case in the same direction. Here the second mortgagee, who purchased, had, it was contended, been himself paid off, and had in his (i) Citing Dobson v. Land, 8 Hare, 210. (ic) 14 Grant, 682. PURCHASE BY PARTICULAR PERSO^S. 133 hands sufficient moneys belonging to the mort- Jj,*:"^" gagor to have paid off the first incumbrancer, although they were not entrusted to him specially for that purpose. Nevertheless, he took an irre- deemable interest by his purchase. (3) The Mortgagor 150. Neither the mortgagor nor any assign of liis can, by purchasing under a power of sale in a tirst mortgage, cut out a second mortgage. Thus, ill Box V. Bridgman (.r), S. mortgaged to G., and sold the equity (in a portion) to B., taking a mort- gage back, which he assigned to the plaintiff. G. sold under power, and B. purchased ; but in the opinion of the court his purchase did not cut out the njortgage to S., but inured to the benefit of the holder thereof. The 83rd section of the Kegistry Act, which abolished tacking as between registered instruments, would have the effect of extending this principle IVom the mortgagor to his assigns by siibse .Iiu- N. S. :v,t.-.. CHAPTER VIII. PURCHASE BY MORTGAGEE. 158. It is the rule, outside of some of the United section 158. t Imso States (a), that a mort^'a^ee may not purchase at liis own sale (h) — a rule that has, in some in-i"a> ,'"' stances, been deduced from the liduciary position lit' was held to occupy. A simpler and better ('\l)lanation of, and reason for this rule has been it'ccntly given by Lord Justice Lindley in Farrar V. Farrars (c), where he says: — "A sale by a person to himself is no sale at all (r/), and a power of sale does not autliorixe the donee of the power to take the property subject to it at a price lixed by him- M'lf, even altliough such price be the full value of the property. Such a transaction is not an exercise of the power, and tlie interposition of a in) See Howards v. Davis, fi Teu. 174; Bif,'cl()\v on Fraud (1H88K p. :il',l; iind (by stiitiite) imrcliase by iiiOit^'!ij:,'L'i's is pciniittod in some ntlii'is of tlie U. S. ; .Tone* 4tli ed. lS8'i ; ct. Mainwarinf,' v. Jeniiison' ••1 Micb. 117. i'-) Hi)ain v. Watt, 1(1 Grant, 'itlJ ; see a'so Fauld v. Harper, 22 C. L. J. IC,2; cf. K. S. O. 1881, c. 100, s. 20. ir) L. H. lOCby. D. 40;». ('I) Cf. Simpson v. Simpson, 12 S. K. 447. 136 POWKIt OF SALK. \m"i6o ^''"stee, although it gets over the difficulty, so far ~ as form is concerned, does not affect the substance of the transaction." eeuclTy l''^'^- Whcrc, howevcr, tlie mortgagor is privy to iiiortKa«oi. ^j^^^ ^h\q^ asscuts to it aud to the ac(|uisition of title by the mortgagee, and concurs in that result after it is refiched, there being no suspicion of fraudulent practice, the sale will stand (r), — consistently, too, with the true reason of the rule as given above, though scarcely so with a fiduciary relation, if it existed between the parties. Bcope of riilo. 160. This rule as to selling in-and-in is not a merely technical or formal one, and is not to be eluded by colorable re-arrangements by the mortga- gee. " It is perfectly well settled," says his lordship, in the same case of Farrar v. Farrars, "that a mort- g igee with a power of sale cannot sell to himself either alone or with others, nor to a trustee for himself (/) ; nor to any one employed by him to conduct the sale "({/). So where the secretary of a building society had acted in the sale by them under a mortgage, the sale to him was upset without proof of undervalue {h). Neither is one in a position to purchase who, outside of sale pro- ceedings, has been an ag>mt in relation to the mortgage, for instance, a person who has acted (f) Medsker v. Swaney, 4") Mo. '2T,i. (/) Citiii}^ Downes v, Grazsbrook, 8 Mer. '200 ; Robertsen v. Norris, 1 Giff. "21. (//) Citing Whitcomb v. Ninchin, .5 Madd. !»1 ; Martinson v. Clowes^ L. r! 21 Ch. D. 8-)7. (h) Martinson v. Clowes, cited above. PURCHASE BY MORTGAGEE. mm 137 as the medium through which the moneys have JSJ^gj' been advanced and interest collected (/). 101. But to solicitors and attorneys having charge of the sale proceedings, whether the pur- chase be for self or client-mortgagee, the rule has most strictly and conhdently been applied. A solicitor or attorney so connected with the property cannot purchase for either liimself or his employer; nor can his clerk purchase as a man of straw for citlier his principal or the vendor, or again for himself [J). Moreover, it is not because the iiuction may be damped by the presence of the vendor's solicitor bidding at tlie sale that the rule is ai)plied to him. For, in one case, where he was not known in the auction room to be such solicitor, the sale was yet voided by Chancellor Spragge. " His duty," said the Chancellor, ''was to fix the time and place and terms of sale and to give publicity to it, to appoint the auctioneer, and so to conduct it in all respects as to obtain the highest price for the land : his interest is so to do all this that he may ol)tain it at the lowest price. The rule I take to be, and it is the onlv safe rule that where there is or may be a conflict of duty with interest, it is against good policy that a party sliould l)e allowed to act, and that if he does act and ol)tains a l)enefit from it, the law will not allow him to hold that benefit " (/.•). Solicitiiis and attiii- uoys. (/) See Orme v. Wrij^lit, 3 Jur. 1*>, I'l) Ellis V. UelabouKli, lo Grant, 181. iiiort^aKor accepted lease of property.] (A) Howard v. Harding, 18 Gr. iHl. 'Set aside. thoU''li after sale f I I V)H POWKIt OF S.lLli. Sections 162-163. Sal»' ti) lilies vnu]- I'liiiy- lO'i. Jiiit tliou^di H mortgiijL^'ee may not sell to himself, thut rule is not extended to a sale hy him to a corporation oi" wliieh he is ji member. In Farrar v. Farrars (/), a solicitor, one of the mort- ^^agees, and acting for tliem all, sold to a company more or less promoted hy iiimself in which he had a substantial interest as a shareholder and whose solicitor he was." All of which, while considered as enough to cast the onus of proving the sale a fair one on tlie company, yet Lord Justice Lindley did not deeiu sufHcient to void the sale. u A sal( said his lordship, "l^y a person to a corporation of which he is a member, is not, either in form or in substance, a sale by a person to himself. To hold that it is, would be to ignore the principle which lies at the root of the legal idea of a corporate body, and tiiat idea is that the corporate body is distinct from the persons composing it. A sale by a memlxM" of the corporation to the corporation itself is, ui every sense, a sale va lid ni e( juity as well as at law liiut.v M-.t-HK.i' 1()3. Some authoritv exists for the statement nf't'irini''' that while a sale by a solicitor to himself, through a third person, is invalid, yet if third persons do purchase and, being unable to back their bid, allow the mortgagee to stand in their slioes, then he will not be deemed to have purchased at his own sale and his title will be absolute (///). Nor apparently will it matter that no deeds have passed to those (/) L. R. 40 Chy. 1). WJ. (ill) Diudeii V. Whetstone. (Ala.) '.» So. 17t the American courts, which are mucli less Mvere towards a mort^'agee-purcliaser tiian tliose of I'jigland or Ontario, where the judges would ))e viiy slow to admit the validity of such dealings, or to permit the mortgagee to tunnel liis way through I. third party into the ownership of the property. l()l. It has been observed that there are three f'"";'''"" "' niiicdies open to tlie mortgagor where the mort- ''"'"'''"*'*'^^'" ^agee has sold to himself: "he may l)e compelled " Istly. To reconvey the estate, supposing he lias not resold it ; or, " "indly. To let it be put \\\) for sale, and to ivconvey to another purchaser, if a better can be toimd; but if not, to keep it; or, " 3nlly. If iu> has resold it at a prolit, to account tor such proHt "(//). The transaction of a sale to liimself, directly or iiit'diately (o), is not void, but voidable merely as against tl;e mortgagee (y/); so that while, in one sense nothing passes (7), yet, until disalHrmed, tlie 111) Durden v. Whetstone, (Ala.) '.» So. 17ti. (((( Dart. V. it P. r,th ed. An. (o) Nichols V. Otto, 182 111. 111. 'P) Whitehead v. Whitehurst, 10-< N.f. 4')H ; Gassenheimer v. Moiil- toii. lAla.) 2 So. 052; Andrews v. O'Mahoiiey. 112 N. V. .■)(;7. ('/) Simpson v. Himpson. (U. S.) 12 S. 1^. 447 140 POWER OF SALE. "iw?!*" ^'^^^ leaves no alienable interest in the mortgafjor {?'). It even appears — on Alabama authority — that the mortgagee may come into e(iuity to have his sale conhrmed, offering at the same time to have the land resold at the option of the mort- gagor (s). Etlect 111 li'iive t(p bid. Kio. It is usual to state it as an exception, tlmt the mortgagee may himself bid if he obtains the permission of the court. I3ut this, it seems, \vill not protect him unless the sale is conducted in a fair and open manner. A very interesting case of this is Uicker v. Kicker (/), in which the mortgagee was also a trustee of the ecpiity of redemption. Here A'ice-Chancellor Spragge made this ruling : " I may as well state here what I conceive to lie the law applying to this case, and how the con- duct of a party in the position of this plaintiff is to be regarded. Allowing him to l)id at the sale was allowing him to place himself in a position where his interest, was or might be to sonu' extent, in conflict with his duty ; but it did not sink his character of a trustee under the will into tliat of a prospective purchaser, so that what would have been a breach of trust if he had not been allowed to bid, was divested of that character because lie whs allowed to bid. It nnist be assumed fcJiat he was allowed to bid to protect his own interest as mortgagee and as devisee; but if he use ' * a per- (;•) McCall v. Marsh, (Ala.) 7 So. 770. (s) OiT V. Blackvell.(.\la.)S So 418; CradJock v. Ani' ricm 281 ; McHaii v. Ordway, h2 Ala. 4(33 (0 7 A. H. 282. ■. and consider tiie Hiort;^a^e as sjitislied. 'J'liis is by analogy to section "J 1 of " 'J'lie IvxecutiiMi Act "(./■), wherein it is provided lliat, if tin uiortf^a^'ee become the pin'chaser und(-r writ it execution of tiie ecpiity of ri'dem})tion, he shall permitted, there is no objection to the mort^'sit^tr making tlie conveyance to himself ((M. the capiicity (.r) 11. S. O. 1HH7, c. t)4. (//) Ct. WooilrulT V. Mills, '20 l'. C. H. '.1. (:) 17 (Inint, "nW. (;i: of. H. 8. O. 1M.<<7. c. 100, h. :>. PUIiCllASK ilY .MitllTa.UlHi:. 148 ill which ho grants l)eing ditferent to that in which lif takes (6). Kji). With such cas(>s as those above niiHitioncJ of i)urchaso by the mortgagee at his own sah», iiiiist not l)e cont'oun:le(l certain otlnn's to be foinid i'l oil* reports, w!i"rein th ' m )rtgag 'j h iving purchased tlie buids from tli ) sheriff — who [)ur- [lorted to sell them nndn* a connnon law writ against lands — it was jield that the liiortgagor might still redeem [<■). As an (Mjuitv of redemjiUon is now sii])ject to execution by the ordinary writ (A' fii-ri /(icia-s, these cases have lost their signiti- caiice ((]). Sections 16M69. rinviiiisc from sli.'iilT. ih) Just us h'tt a few of our Oiitiirio ti Ifs to liuul lake rn.)t in piUt'iits by I'liter itus-iell, a liniiii-iti'at )r of t!i" I'roviiua'. li> I'l'Ii'I' Hiwsell, ;!oiitleniai). {r) See HiinpHon v. Hmytli, 1 1]. iV A. '.»; Walton v. Bernard, 2 Cii'. •tit ; Aitcliison v. Coo;nb8, (i (Ir, ird, "pay the surplus, if any, to the said mortgagor, his executors, adminis- trators, or assigns, or as he shall direct or appoint." The power implied by P. S. (). 1HH7, c. 102, part II. provides (sec. 25) for the application of the proceeds : 1st, in payment of the expenses of sale or attempted sale ; 2nd, in discharge of interest and costs due in respect of the mortgage ; 8rd, in discharge of the principal ; 4th, as to the residue, that it shall go to the subsecjuent incum- brancers, according to their priorities ; 5th, that the balance shall go to the owner of the ecpiity, \m heirs, etc. WW:- APPLICATION OF PltOCEEDS. 145 171. Apart from the statutory modes above sections referred to, there are principles that control the p^^jj,,,-- application of the proceeds, which principles uoim',!''""" slightly vary, according as it is, or is not, permitted^""*" ^ or intended to take advantage of an acceleration of the principal. 1st. Where such an acceleration clause exists, and has been brought into actual exercise by the demand of the mortgagee for payment of the whole sum, an application should be made of the money to the principal sum as well as to other portions of the debt. 2nd. Where the clause exis+s, but the option to enforce it has not yet been exercised, and the whole property has been sold to satisfy one instal- ment of the debt before the maturity of the others, there is still the option to apply the proceeds towards the whole principal {a). 3rd. Where no such clause exists, or the mort- ,uagee persists in not acting on it, and the whole luoperty has l)een sold as jiforesaid, there is authority for the statement that the mortgagee may hold the balance after satisfying what is niready due, subject to the same lien as he held on the property, and that the mortgagor has no claim oil such balance (b). But the rule in Thompson v. ((() Heath v. Hall, CO III. 344. {b) Jones, 4th ed. I!t37. H.rs. — 10 TT 140 row Eli OF SALE. ^n-iT2 Hudson (r) will qualify this statement somewhat, n„ie ,„ being to the following effect, that, after payment of v.'Hlldson! interest and costs, the mortgagee should either pay the balance to the mortgagor or apply it in reduction of the principal due on the mortgage ; and that, in taking an account against the mort- gagee who has retained such balance, a rest nmst be made at the time he received the proceeds of sale. In other words, having the ready money in his hands, he cannot go on charging interest on the debt. And, at any rate, where the property being incapable of division without injury is sold upon the first default, yielding a sutticient sum to satisfy the whole debt, it may independently of express power of acceleration he so applied at once (<]). 4th. Where it is merely intended to satisfy the instalments already in default, a portion of the property may be sold ; and if the proceeds are not sufficient, still further jjortions may be sold. But, if the proceeds are more than sufficient, the balance or surplus will be governed by the principle in Thompson v. Hudson, and should be applied towards the reduction of the principal. 172. Generally speaking then, a power to accelerate is in reality implied in the free exercise of the power of sale ; and frequently also circum- c) L. R. 10 Eq. 497 ; althoufjh the decision referred only to a partial sale, yet the principle is equally applicable where the whole property has been sold. ((i) Jones, ib. ISTKIIKST. 147 stances be^et a conespoiulin*,' duty to exorcise the ^S?"" option of putting that power of acceleration in force. Where a portion only of the lands has been sold, and the del)t is covered by the proceeds, it is the duty of the mortgagee to reconvey the remainder to, and at the expense of, the person entitled thereto (e). (B) Interest. 178. The (juestion has been raised more times wimt ,,_..,,, arrears of than were necessary tor its decision, whether the'"'''^'st. mortgagee could retain out of the proceeds of sale more than six years' arrears of interest on the debt secured. The root of the olijection is found in the 17th section of the Heal Property Limitations Act (/ ), which declares that no arrears of interest "shall be recovered by any distress or action but within six years next after the same has become due." Both the English and I'pper Canadian courts have lefused to regard this enactment as governing the rights of the mortgagee in this matter. Thus, in In re Marshfield (^y), the judge was unable to agree that a suit by the mortgagor to recover the surplus money was an action by which arrears of interest were sought to be recovered. The same view has been taken in our own case of Ford v. Allan (//) — in (e) Cf. Short Forms Act (R. S. 0. 1887, c. 107. clause 14 in Schedule). (f) R. 8. 0. 1887, c. Ill, e. 17 ; cf. 3 A 4 Will. 4, c. 27, (Imp.) s. 42. (g) L. R. 34 Ch. D. 721, approving; Edmunds v. Waut;h, L. K. 1 Eq. 418 ; see also In re Sclater's Trust, L. R. 11 Ch. D. 227. (/() 1.5 Grant. HM. 148 POWER OF SAl.K. Allan v McTnvisli. SMUon other words, the mortgagee is sheltered by the maxim — melior est conditio defendentis. In Howern V. Bradburn (/), more than six years' arrears were allowed to avoid circuity of action, in accordance with the spirit of the Administration of Justice Act [j). In Allan v. McTavish (A), both of our Statutes of Limitations (/) are discussed in reference to this topic; "the construction of the two Acts taken together as regards rent or interest being that no more than six years' arrears of rent or interest in respect of any sum charged upon or payable out of land or rent should be recovered by any distress, action or suit, other than and except in actions of co\enant, or debt upon specialty, in which case tli(' limitation was governed by the other statute and fixed at twenty years." The result of all this is, that in Ontario twenty years' interest seems retainable out of the proceeds as against the mort- gagor. Whether, however, inasmuch as the right to so retain for arrears beyond the six years, or at at any rate beyond the ten years, is strictly a right oil tlie mortgagee's specialty, and not growing out ot or aided by his lien on the land, or whether he would liave priority over a second mortgagee, (also a specialty creditor,) for the extra arrears, does not yet seem s(>ttled. l^'or it is (piestionable if the mortgagee can, by paying himself out of the pro- (i) 22 Or. '.Iff ; followed in Maodomvlil v. Macrtoiiald, 11 O. K. Is7. r.// MS Vict. c. S, (Ont.). (k) 2 A. \\. 27rt, followe({ in Macdonald v. Mucdonaid, above: '.). Certain of these allowed expenses will be discussed later on in the Chapter on Costs; other expenses may now profitably be considered here. (1) Just Allowances. 175. In an action — as for redemption — where the mortgagee is brought to account, it is usual to credit him with what are known as " just allow- ances" (q). The extent and nature of these will depend on the scope of the power given by the mortgage deed. The words of the Short Form Act are sufficiently numerous on this head : " the costs and charges of preparing for and making sales, leases, and conveyances, as aforesaid, (m) Cf. Talbot v. Frere, 9 L. R. Ch. D. ofiS. (;i) See Sclater v. Cottam, 3 Jur, N. S. 630. (o) Ellison V. Wright, 3 Russ. 458. (p) lie Leslie, L. R. 23 Ch. D. 552. (7) Cf. C. R. 57 (3). What are juHt allow- ances, 'i H II ! '\ : 1 ■' • ' I ,i| 150 POWER Jur. N. S. 738. {() Brooke V. Stone, 84 L. J, Cli. 2.51. (h) As in Wilkes v. Saunion, sk/jci/, where the property was, however, not realty but a ship. mm !:\i'ESsi:s. 151 (4) liepairs : — To hv allowed, us of course, ^g**"^ these must be " necessary repairs" as distin- — - Li'iiished from permanent improvements, sometimes called "substantial repairs" (/•). (/5) llents and lines paid by a mort^'a^^ee of leasehold have been allowed {ir). [(')) Costs of taking- out administration, where necessary towards realizing the mort,L;age debt would be allowed: at any rate, it has been held that the mortgagor himself, having paid them, could not take them out of tlie fund in the mort- gagee's hands (,/ ). (7) Commission to a real estate agent on a ^^'j^';;;'"''^- sale or lease of the property through him is a proper item to be allowed in a mortgagee's account [//). (8) Ueceiver or baililT to collect rents: "A mortgagee cannot be i)aid as a rcceiNcr, nor can he generally and universally, wlicii lie takes posses- sion, appoint a receivei-. Jjut, if the \alue of the estate be such that great time and trouble must be sacrillced in th(> receipt of the rents, be may appoint a receiver" [z). These principles "have never been disputed. A mortgagee in possession, (?) Tipton Green Coll. Co. v. Tipton INIoat Coll. Co.. L. R. 7 Cli. D, I't"). See iiiini, panitiniplis 177 it M'.y. (»•) Hamilton v. Denny, 1 Ball A B. '202. (r) See Saunders v. Dunnmn, L. H. 7 Cli. D. H2.'). (//) Wells V. Trust iV Loan Co.. '.» O. R, 170. (:) Davis v. Dendy, A Madd. 170 (Leach V.C.). ^^ l'V2 POWER OF SALE. iTe'n?* ^^ *^® ntitiire, situation luid circumstances of the property make it a reasonable thing, will be allowed something in respert of the expenses of the person appointed to collect the rents; but in order to justify an allowance of that kind the mortgagee must show special circumstances " (a). (2) Lastififj L/iprufcinenfs. Ml!., ill Shi'luuil V, cJlillL'S. 177. (1) Bi/ First Mortijatjee. — It has sometimes been roughly stated that no allowance will be made to the mortgagee for valuable and lasting improve- ments made by him on the property {h). But tliis is by no means an accurate statement of the law. More strictly speaking, such improvements are not allowed as of course, but nuist, even when nf a proper nature, be alleged and proved (t). How far, and what manner of, such improvements are to be allowed, has been dissected out by the court in Shepard v. Jones {il). The following is the view therein propounded by Jessel, M.li.: " It is a suit brought by the mortgagor for an account from the mortgagee, who has exercised his power of sale, of the application of the proceeds of that sale and a claim for the balance. If it should turn out that the mortgagee has done something to the property at his own expense which increased its saleable value, I think it is plain, on ordinary principles of (a) Stanes v. Banks, 'J Jur. N. S. at p. 1050. (b) Murphy v. Meade, 1 Jones, »)'20. (c) Tipton Green v. Tipton Moat, L R. 7 Chy. D. 195, Jessel, M. R. (d) L. R. 21 Ch. D. 477. KXPE.SSKS. 153 justice, that that increase should not go into the 8«cMon pocket of the mortgager without his paying the sum of money which caused the increase. It dis- tinguishes it from the ordinary case of improve- iiit'uts. Tile increase may have heen an increase wliicii did not come under that denomination, hut wliicli increased tlie selHng price. It seems to me that wherever there is a case of that kind, where the mortgagee can prove that the selHng price was increased hy reason of the outhiy, then, to tiie extent to which that selhng price has heen so increased, the mortgagor cannot get the henetit of it without paying for the outhiy. Of course, the mortgagor coukl not be made to pay more than the increase ; but to that extent, it seems to me, in ordinary justice, the mortgagee is entitled to say, ' You shall not get that increased benefit caused by my outlay without paying for that outlay.' * The mortgagee cannot be deprived of that benefit because he did not tell the mortgagor of it i.e., the improvement . If, on the other hand, it is an unreasonable one, and produces no advantage, I do not see why the mortgagor should be charged with it because the mortgagee gives him notice of it. He could not l)reveut it, the mortgagee being in possession." This is, of course, apart from any express contract or any " acquiescence " on the part of tlie mort- ^'iigor. 178. In the same case, we have a more par- ^^.f '\\"^.* ticular statement by Lord Justice Brett, the effect p^c whereof is : that to justify encjuiry as to alleged iquir l to 111- prove- lUCIItH. ir,-l Sections 178 180. Limit tu illllHOVf- lllClltN Seci ind iii Ch. D. 433. /•..\7'/..v.s/:.s. diai^a' in respect of tlie money bo exi)en(le(l 1)V liim. If that wore so, we sliould liave, in aliiiost every (•a>e of a second niort^^a^'ee in possession, un iii(|iiiry wlietlier any sum of money laid out in jiciiiianeut improvements l)y tlio second mort^Migee was uot to l)e deemed salva^'e. It is admitted that no sucli case can l)e produced, and I aiu not ^'oing to make a precedent wliich I tliink would hi; highly inconvenient " {.'/). ir,.5 Sections 180 181 (8 1 Profit Cl/arfjrs. Isl. There will he no allowance made to a iii(»rt;,'ag'ee fordoing in person \\hat, had any other }i(ison heen employed hy him to do it, would have liccn a proper act in relation to the security, and mif for which reasouahle charges would have heen alliiwed. Thus he cannot hoth personally perform and charge for the duties of a receiver or hailitf in collecting the rents \In. Nor can h(% heing one of a lirm of auctioneers, jjoth eiii})loy his iirm and pay tliciii their conimission (/), Nor can a mortgagee he allowed a coiiimissiitn foi- himself except hy a'jreement ( y'l. Not aUo\vu(> for tvonblu. I'D As to improvements by lessee, see I'oiiit Bree/.e Ferry Co. v. Kraiiaw, (N. J.) 20 Atl. %7. I'll Bonithon v. nockmorc. 1 Veni. Hl'l; ami seo Carew v. .Tolniston. ■-' Sell. A- L?f. ;{0r, Lon'48taft" V. Feuwick, 111 Ves 4(ll ; Tninlestuii v. Hamill. 1 Ball ^: B. 377. Ill ^lathisoii V. Clarke. 1» Jiir. 1020. ( ji Leith V. Irvine, 1 Myl. iV B. 277. Wl 'fl Tii It 156 I'OWEn OF SALE. Section 183. 18'2. Indeed, it is doubtful how far, by express (Mt. ^orT ^^K^t'^J'^eiit^ the iiiort^'a«,a'e ran, in any instance, st'ip*iIiftto secure such advantages to liiniself. It has been tor prollt ii-ii .. 1 I -ii' ^ummw! held that a comnnssion tor a loan will, ni the absence of i«,'norance, surprise, or oppression, when actually paid, be good as between mortgagor and mortgagee (/.). But, on the other liand, it h.is been strenuously asserted tluit, notwithstanding such an agreement, the court will not allow a mortgagee more than his principal and interest (7i ; that he cannot, under colour (if a mortgage, obtain a distinct collateral advantage— a ruk' which is not dei)endent, according to Jjord Komilly, on tlie existence of usury laws, but ratlier on the tender- ness of the courts towards the eciuity of redem[)- tion [m). So, if this l)e tlie correct view, all stipulations are void that provide on behalf of a mortgagee for fees and cliarges for his trouble in personal management (//). The rule — to whatever extent it goes — equally applies to one wlio is a member of a tirni and employs the same (o). This matter will again be touched upon in the Chapter on Costs, under the head of solicitor-mortgagees. {k) Potter V. EdwardH, 'IW L. J. Cli 48 ; see also Sayera v. WhitlkM, 1 Knapp. 133. (/) Freucli v. Baron, 2 Atk. 120. (m) Broad v. Selfe, '.» Jur. N. S. H85. (»0 Cotnyns v. Comyna, 5 Ir. Eq. 588 ; Eyro v. Hughes, L. 11. - Ch. I). 148. ' (0) Barrett v. Hartley. L. R. 2 Eq. 78'.»: Nicholson v. Tuteii. A Kftv a J. 159. lildHTS. Dl lilGHTS OF SrHSi:(^TKNT iNClMBltANCKHS. Sections 133 184 183. liH'identiilly throu^Oiout this l)ook liave littii canvassed the rif'hts l)oth of tlie inortiraijror n'^n' ;iiiil his various assigns. It is j)urposo(l for con- vcuionce' sake partly, and also hecauso it is in Illation to the proceeds and surplus that lie is ciilitlcd to have liimself reckoned witii — here to ciiinuerate some of the peculiarities of the position (.1 a second inortfj^agee or puisne incund)rancer. That lie has a certain claim (j>) on that portion or scdinu'Ut of the proceeds, which hecomes tlie • >nrplus," is uncjuestionahle, although the ttich- iii( al nature of his claim— whetiier it he a purely iiioHcv demand or what, has not l)een nuide clear I// (1) li'Kjlit i(> Fair l),(tUu(j. is I. Tlie s<'cond mortgagee is not to he •nan-J'j';.!,'; ';,^,,, iicuvri'd out of his claim hy arrangements hetwc'cn nlnnu'iVp'.. the [)rior incund)rancer and the nioitgagor ; as for instance through a sale hy the tw(» of them with (he iilijoct of shutting him out. This is well expressed ity Lord .Justice Cotton : " Wlid'c t he lii'st mortga- ucf, as owner of the pi'opirty and having control over it. turns tlu' hind into uioiu-y foi' the owner of the t<|iijly of re;lempt ion ciiiinot. without I lie concur- iviicc of tlie lirst mortgagcf himself turn (he hind ■/I His rlaiins uic iiiHiiilv iii l'.>iiiit\. Sec Muii^Iihii v. Siiiiriu'. Ill •liir N. S. iW'.t, (liiiMiun thai tliut is no rt'iiii'dy iit law hv hi-i'iuhI (71 Soo qmirif in (iivtn v. lltiniillDii I'mvnlont, lU l". ('. i'. P. ')7J. lis ir>s /'Oil/;/.' or >.(/./; Sectiouu into iii()iu'\ — if lie, th e iiioitf'a'a'c', tlocs so witli kn()\vl('{l;4^' thiit the money is not ^oing to lie iipplied in ;i pcoper Mianncr, he is, in my opinion. as liable tor the money as it' he had received it under an express ohligation toj^dveit to that i)ers(iii properly entitled to it. It is eonceded that if he exereis<'s his power of sale as mortj^agee, whether under the terms of the mortgage deed or by statute, he is answerable for the money he receives if he pays it t(j the wrong person, that is to say if he passes over the si'cond mortgagee and i)ays it to the mortgagor who has no right to receive it" (r). Moreover, the suggestion has been judi- cially made (but the point was not determined) that, while the release for a nominal consideration nf [tortious of the security of the prior mortgagee )uld not release the other portions in favor of the \V( mortgagor, oi- give priority in icspect to them to a subse([Uent in< iimbrancei-. still the Hist mortgagee may be resi)oi isible to the second t( the fi )f ti ur vanie oi tne [)arceis conve 'yed (.^ Huyiti},. Ill [,S'5. On the iitber band, there is no law to H( ( C 111 1 1 ii.nrt«H«»., pj.^.y^,,,^ tjjjj |i,.^,f mortgagee buying up the second at a discount, without disclosing to him the know- ledge he has of the i)robability of a protitablesalei/). Nor, further, can the second mortgagee exercise a (;•) West Loiuloii Comnurcial Dank %•. Hcliance I'. HMn. Boo.. L. H •2!t Cli. D. ".Mil : HL«e also Fuller v. L.iii>;tmi. H7 Minn. 71. {n) TruHt iV Loan Co. v. Houiton. in Or. 'I'M : hut see Hnone v. (.Iiirke (111.) -21 N. K. H.5(). it) Dolriia.i V. Noken, 22 IJeav. 4U2. UK HITS. !.>(> riulit to cousulifliite as iiL^cainst a prior iiiciiiii- ^0°"°°^ l)raiK-t'r selling under p.Aver (it). 1S(), Where there was a trust to a second niort-*^'"'"« •;».''- net to first p:a^ee to sell, and t)ut of the proceeds to pay the ""'"^'""'^^' first and second mortgages and pay the babmce to the mortgagor, a sale by him subject to the tirst mortgage was held vali 1 (r). (2) Ri(jhf to Account. Is7. It is clear law that the account to be A.oouut at . 1 . , instiuu'o of taken as against the nrst mortgagee at thes^'^""^' instance of the second mortgagee must be taken, in all respects, as though the mortgagor himself •ere taking it; and that if the mortgagor would have had an equity to exchide any item in the account, that is an equity which can be asserted hy the second mortgagee [w). ISS. Alsothe mortgagee-vendor is liable to a sub- Liabiiit> ..1 se(|uent incumbrancer for loss caused by his own>^«^L'md ^ •' mortgagee mistakes or those of his agent. Thus in Tondin f;'^!;;,'^'* V. Luce {x) the mortgagee's auctioneer inserted in the particulars of sale a statement as to the condition of the roads on the property ; which statement turned out to be incorrect, and the purchaser declined to complete without conq^ensa- {»<) See Merritt v. Stephenson. 6 Gr. o()7. (I) Manser v. Dix, 3 Jur. N. S. 252. (w) Mainland v Upjohn, L. R. 41 Ch. D. 120 ; Melbourne Banking Co. V. Barryhnni, L. R. 7 App. C. H07. ix) L. W. \A Ch. D. 191. vv 160 POWER OF SALE. iIsSm" ^^^^^- Compensation was allowed and the sale wns completed. It was held on appeal : firstly, that the first mortgagees were nnswerahle for any loss which was occasioned hy the hlnnder made hv their auctioneer at the sale. But, secondly, the amount of compensation given was not to be treated as a sum which, but for their wilful default, they might have received; rather tlie measure of damages would be according to the value of the misstatement, which would depend upon what would have been given by a purchaser for the property if that misstatement had not been made. Wilful (Ir-riuilt 189. Here it will be proper to state the doc- trine of " wilful default," that so materially affects the liabilities of the first mortgagee during sale proceedings. As stated by Jessel, Master of the Rolls (//), the law stiinds thus: " Every mortgagee who sells and receives the purchase money is liai)l(' for wilful default if he does not receive what he might have received by due diligence. * It appears to me, therefore, both on principle and authority, that the proper form of account against a mortgagee in possession who lias sold is an account of the proceeds of sale received by him. or by his order, or for his use, ' or wiiich without his wilful default might have been so received." " It does not seem, however, that in taking the account, it is proper to cast on the mortgagee the burden of proving that he made the most of the ((/) Major V. Muiray. H C\\. D. 42r.. moins. 1(51 mortgaged property whilst in possession; in short, wilful default must be proved («). 1110. As among themselves subsequent incum- brancers must form a queue in the order of their priorities; and when the mortgagee shows inclina- tion to give some claimants an undue advantage, the money may be ordered to be paid into court, iuid a receiver will be appointed of the proceeds of the property remaining unsold {a). Sections 189-191 I'rioritiu!- ainoiiK in'isiie ill- I'lnnbrRii- Cl'l'S. (8) Juihiuicnt Cyetlitors. 191. The necessity of recognizing the interest (if his execution-creditors in the mortgagor's ecpiity has already been dealt with. It remains to add a short note on their rights in regard to the proceeds of sale. Cases shew that the uio)i;gagec- vcndor may be restrained by injunction, at the suit itt' such creditors, from paying over the surplus of proceeds to the mortgagor, or otiierwise applying it in disregard of their rights (//j. It is not so clear liow far a garnishee order will affect the surplus ; hut it seems that the judgment creditors of ii puisne incumbrancer, by garnishing tlie mort- gagee-vendor, can, and by garnishing the mort- gagor cannot, successfully i)ind what surplus the vendor holds by time of service (c). (inniisli- lllCIlt. (J) Metcalf V. Campion, 1 Moll. 2.H8. («i) Coote, 5th ed. 283. (b) Robinson v. Hed^er, U Jnr. 7H4 ; Thornton v. Finch, \ Giff. ;'ii.',. (<•) CImttcrton v. Wntney, L. K. Ki Ch. L 27H. 17 Ch, I). 25!» : sre Wij>nin V. Ileywood. IIH Maua. .'>14. If.P.s. — 11 illt'f I'* .1 ' mi pom: It OF .SI/./.. Sections 192-193. Mort^Htiui' has ii<' riKlit t.) 8UI'l>ll|H, (K) Si- lil'LlS. Or of If taiiiiT. IlllUlfSl on Hui'pliir* Wi'l. The word "surplus" is sullieiently self- explicit not to need detiuition, ulthough sonic w riters on mortgage law (a\ inlerest tMi it(//'i, although, if under {)ressinv of adverse elaiins and at the re([iiest i^\' a puisiir iiicutiibraMccr he retains it, interest will not niii against him /). ((/: /•; ;/. Mr .Idiios. (rl Chapmivii v. ('or|H', 111. T. N. S. -^'l. { n Unshbrook v. liiiwrt'iicL'. L. H. ."> Cii. '.i. I:/| Talbot v. Vvvrv, L. H.'.t di. I). .".Us. (/.I ClmrU's V. .loiioH. I,. H. :i."» Cli. ]>. .'.14: Siiiilli v l'ilkiu«toii. I IKC;. F. A .1. P.M. (/) Miitlnsnii \. ( !i\il f, 'ir, I, .1 r'h •_':». r TT'- ' : !iriiPLUS. li)4. Pnyiat'iit over of the surplus is usually iiijide on advice of solicitor. That such advice is not always the best, we learn from Kew v. Lane (/'), where tlu> mortgagee, having, on such advice, ));ii(l over to the mortgagor — a debtor of the solici- \{)r — itnd being considerably damnified by such payment, was held entitled to an action against his interested counselhu'. A curious application of tilt' liability of the mortgagee to account for the Mn'[)lus has lii\ewise l)een nnide as against a solicitor. l'(ir the latter having acted for both vendor and jturclniser, and having the surplus funds in his li,.nd.>, it was, nevertheless, held that he must, as agent in a fiduciary character, pay them over to tilt' mortgagee; who, of course, had no personal 1 i.uht thereto, but was strictly accountable for the same to tln^ Uiortgagor, in this case deceased, uitliout kith, kin or claimant (/.). 1()H SectlOQB 194-1<.)5. I'llVlllt'llt oil llllvlcd of solifitor. I*.)."). The proper recipient of the surplus is iisnidly designated in the deed of mortgage, oris iiiiplit'd by statute. Thus, the Short Form Act says. ])!iy to " the said mortgagor, his executors, administrators or assigns, or as he sliail direct and a|i|H)int." The second ])art of cha})ter 102, !>'. S. (). KSS7, more lucidly jjrovides for — what in iiiiy case is the i)roper a[)plicati()n— payment of the ivsithu' to the subsetpient incuml)rancers accord- ing It) their priorities (/). In our country such To \N liOIII ';lll'|>llls l>tl>lllll<' (./I :{ .Iiir. N. H. V2'>. (A I In n Ht'll, L. R. 34 CIi. 1). Ifi'i, citin« Burdick v. Garrick, L. R. 5 '. li. *2:<;{. (/) S. "J") ; aiul Hue infra pui-ujiiapli I'.tt) for Uic usual practice. 'IH'1 m\ 164 POIVKR OF SALK. sectiona incunibmucers are tliose disclost'd by the ])reliiiii- 190198. — nary searclies of the vendor under power, and, of course, any others who may notify and prove their chiinis to him (tn). Whon to owner of «v|uity. I'aymt'nt into oiirt. li)5a. FaiHng subse(juent ineumbrancers known to liim, the mortga^'ee may pay over the snrphis to the person entitled to tlie property, subject to thi' charj^'e under which sale was had (//). Pay- ment may have to be made to the mortgagor — to a subse(|uent purchaser — or to an assignee in insol- vency {<)), as the case may be. Where the party entitled has died, payment, in Ontario, would be made to his personal representative (jO- In any event, in the absence of notice to the contrary, tlie mortgage(» is entitled to pay over the surplus to the apparent owner of the e((uity of redemp- tion (>session of the surplus during six years from thep,'i|;,^tT tiui ' of sale, it is prol)able tiiat action against him""'^''"*' t'ni th<» same will be l)arred. For a trust of the siiiplus can only arise, if at all, on proof that there IS a surplus in tlu' mortgagee's hands after paying himself. But such would l)e a constructive trust, ■ and if that be so, the ordinary rule of a court of LM|iiity would apply, that nobody would he allowed to enter into evidence to raise a case of constructive trust after the statutory period liad expired "(r). So that certainly, unless tiie surplus were aseertained, no such trust thereof could be proved as to exclude the statute of limitations. From a (lilleient point of departure, we nuiy follow Mr. Justice Proudfoot (ir), in regarding the surplus as not in the nature of a trust, but as money received to the use of another, and (51 10 & 11 Vict. c. %; see R. S. O. o. 41, s. '23. (fi ar) Or. 151 ; cf. Rlecker v. Orahain, '2 Edw. (N. V.) tllT. (u) But 860 article by A. H. Miirsli, t^.C, in C. L. T. Vol. \. p. t»;j. (i) Buimer v. Hcrri.ltje, L. R. IH Ch. D. -irA. iir) IJoiilton V. Rowlaiul, 4 O. R. 7'20 ( POUKlt OF SALi:. 5?i9f <^^c 3^ ///// 1.0 I.I 1.25 m 35 IIIM 1125 ^^ IIIM i" litt 12.2 2.0 U III 1.6 Photographic Sciences Corporation 23 WEST MAIN STREET WEBSTER, N.Y. 14580 (716) 873-4503 3^ ///// <4o • '^ C/ji 4? III'-'-' h' IJ CHAPTER X. REMED" S OF OWNER OF EQUITY. (At JlvFL^XTION (a). Section 199. It is very ^kr from being a matter of ^ eom'se to obtain an injunction against the mort- ^ujunctiou gj^gggjg proceedivig to sell. Bo long as it is not course, quite clear that he is acting male fide or frandii- lently (ft), or outside the scope of the power (c), the court has no jurisdiction to restrain him from its exercise {cl). Where, on the other hand, it is dis- tinctly made out that he is attempting to pervert the power from its legitimate purpose and to use it for the oppression of the mortgagor, he will be enjoined its use {e) ; but it is not sufficient to (a) For forms of decrees of injunction in such cases see Setou 4th ed. Vol. I., 287 ; 6th ed. Vol. I., 621. (b) It is only where the mortgagee is gnilty of some fraud in the execution of the power that he can actually execute it, and at the same time violate his duty, Reynolds v. Hennessy, 8 Atl. 715. (c) Holland v. Citizens, (U. S.) 19 Atl. 694, ((/) Jenkins v. Jones, 2 Gift. 99 ; Harding v, Pingey, 10 Jur. N. S. 872. (e) Davey v. Durrant, 1 DeG. & J. 535. INJUNCTION. 169 5I10W that the exercise of some other remer!y of J^JJJ* the mortgagee would be more beneficial to the" party complaining (f). The distinctions are to be noted that a much stronger case is required to restrain a mortgagee than a trustee (g), and a much stronger case to restrain proceedings to sell than to set aside the sale (//). 200. Insufficient Grounds. — To show the Jl!^[JS'^J strength of case required, there may here be'"^"""""" enumerated some of the circumstances that have not been considered of sufficient moment to secure an injunction. (1) Scarcity of money (/), business depression, and bad weather (j), though these certainly go to the price at the auction, are no grounds for enjoin- ing the sale. (2) The insolvency of the trustee — where the mortgage is in the form of a trust deed — will not, in the absence of danger shewn of misapplication of funds, be of itself sufficient (k) ; but the court may, according to the American practice, associate a referee or master with him to insure a fair sale (/), or take security from him (m). (/) Beddell v. McClellan, 11 How. 172. ig) Anon, 6 Madd. 10. (/;) Jones, 4th ed. 1801. (t) Muller V. Bayley, 211 Gratt. (Va.) 521. ij) Caperton v. Landcraft, 3 W. Va. .■540. (A) Tooke V. Newman, 75 111. 215. (/) Van Bergen v. Demarest, 4 Johns (N. Y.) 37. (m) Terry v. Fitzgerald, 32 Gratt. (Va.) 843. '•■.I ■ H ^r^ 1, f . Hi 170 |l i ': « POWER OF SALE. 2S201" (3) It is not enough that the vendor piiri3oits to sell more than he validly can under the power — thereby clouding the title of that which he has no right to sell ; for the mortgagee cannot actually sell more than belongs to hini (/?). (4) Lack of notice of intention to sell — when notice should be given — is not, 2^er -sf, good material for injunction ; for it is open to the mortgagor to afterwards set aside the sEde, which is thus, in the absence of non-inquiry clause, at the risk of the purchaser (0). But where the mortgagee assumed certain trusts as receiver, which wrrj to be ter- minable upon notice, he was restrained from sale until he should give notice (j)) ; the distinction being, that in the latter case the power was sus- pended and in abeyance until notice ; while ordinarily the power is perfectly operative although notice may be essential to the subsequent validity of the sale. (5) The sale w411 not be stopped to permit a set-off by the mortgagor (7) . Sale by 201. A secoud mortgagee has no redress by first mort- .... .. .. , ■,■.. , gageeat Hiiunction agaiust a prior incumbrancer selling at request of "^ ,. i i p i inortgaKor. the rcqucst of the mortgagor, who from the coiii- of the subsequent title cannot plicated state himself sell the subsequent property, and invites the first (h) Armstrong v. Sanford, 7 Minn. 49. (o) Pritchard v. Wilson, 10 Jur. N. S. 330 ; but see Gibbons v. McDougall, 26 Gr. 214. (p) Gill V. Newton, 12 Jur. N. S. 220. iq) Frieze v. Chapin, 2 R. I. 429. i : I !, r ISJUNCTIOS. 171 mortgagee to do sc. For it has been said that " a ^m*.?" man taking meiely that which belongs to him, by means of the security which lie has contracted for, does not act improperly in so doing, merely because one principal reason for his calling in the money is a wish to benefit another person. The case, how- ever, might be different if it were part of the arrangement that the mortgage- diebt should be again lent to the purchaser (r). lust be 202. Generally speaking, an injunction will notj^'.'i'^j be granted unless it be shown that the injury ""^''^'■'"''® likely to be sustained by the parties complaining will be irreparable (s) ; and will not be granted where the conduct of the plaintiff is tinged with mifairness (t). It is not sufficient, either, to merely assert that the sale will materially embar- rass the plaintiff or that he does not owe the money but he must sho'/ how he \vill be embarrassed (ii), and how it is he does not owe the money (v). 203. Good Grounds: — (1) It seems that where <^'^"^i , . V ' srounds for a mortgage is void from its inception, from fraud, '"J""<=''on- which is alleged and proved, an injunction will lie (ic). But application for the same nmst be by the mortgagor himself, although the holder of the (r) Dart. V. & P. 5th ed. 75 ; cf. Woodward v. Jewell, 11 Sup. Ct. Rep. (U. S.) 784 ; Taylor v. Von Schroeder (Mo.) 16 5. W. 675. (s) Kershaw v. Kalow, 1 Jur. N. S. 974. (0 Ferrand v. Clay, 1 Jur. 265. (h) Montgomery v. McEwen, 9 Minn. 103. (r) Vaughan v. Marable, 64 Ala, 60. (w) Southampton Boat Co. v. Muntz, 12 W. R. 330. ' Ir ppf r m^ i' '. ' ■ ■■ i i^ 1 %m ': , i!' 3 V- , |i rj r h:,:" 172 Section 203. POWER OF SALE. mortgage took with knowledge of the fraud and at a discount. And however allowable it may be to enjoin the exercise of a mortgage that is void ab initio, there is no right to an injunction staying sale until an alleged error in a valid mortgage shall be corrected {x). (2) Unconscionable conduct on the part of the mortgagee may sometimes be good ground for a restraining order. As where the mortgagee is improperly attempting to collect a penalty under colour of the mortgage (?y) ; or where he acted as solicitor to the mortgagor, and the latter went on his advice {£) ; or where he is attempting to use the power of sale in the mortgage for some o te collateral purpose {a), or as a fulcrum to get an advantage on another mortgage, — he will be restrained because the scope of the power in the first mortgage only includes the realizing of the debt thereby secured {h). (3) The best ground for injunction is payment or tender of payment (c) of the whole debt due id). It is not enough to have paid or tendered principal alone (e), or principal and interest without costs ( /'), (x) Jones, 4th ed. 1807, 1811, see also 1813. (y) Bidwell v. Whitney, 4 Minn. 76. (z) McLeod v. Jones, L. R. 24 Ch. D. 289. (a) Bobertson v. Norris, 4 Jur. N. S. 155, 443. But not where such purpose is merely incidental, Holland v. Citizens, 9 Atl. 654. (6) Whitworth v. Rhodes, 20 L. J, N. S. 105. (c) Sloan V. Coolbaugh, 10 Iowa 31 ; quare, is tender sufficient when other conditions are broken ? Roberts v. Loyola, (Md.) 21 Atl. 684. (rf) Green v. Engleman, 37 Mich. 460. (e) Powell V. Hopkins, 38 Ind. 1. (f) See »uj>ra. Chap. III. mm ISJVNCTIOS. 173 or for the counsel moving for injunction to undi^r- J^j^JJ take to make tender (^). (4) Where special circumstances are alleged and proved which make an injunction necessary to the ends of justice, it will lie (h). (o) It will also lie against *' further proceed- ings " if taken in contravention of R. 8. 0. 1887, c. 102, s. :-o (0- 204. The injunction should be bespoken, if at all, before the completion of purchase, that the rights of a purchaser may not intervene (J). It is most commonly in suits to redeem that they are applied for, but it is doubtful whether the pendency of a redemption action is alone sufficient ground for restraining sale (A). On the other hand, after tender of payment refused, a Luit to redeem would, it seems, be proper material for an application for injunction until the suit could be heard (I) ; but a mere offer, without actual tender, is as nothing (ni). Again, where the sum due is not ascertained, and there is a dispute as to the equities of the parties, or as to the existence of a breach of a condition of Wlieii to be iilH'I it'll for. (ij) Paynter v. Carew, 18 Jur. 417. (h) Ex parte Fell, 29 W. R. 881. (0 Smith V.Brown, 20 O.R. 165. ( j) Boulter v. Mutual Loan, W. N. (1869), 80. (fc) Adams v. Scott, 7 W. R. 213; see, however, Rhodes v. Buck, land, 16 Beav. 212, and Commercial Bank v. Bank of Upper Canada, 1 Chy. Cham. 64. (0 Jones, 4th ed. 1797. (m) Matthie v. Edwards, 11 Jur. 761. • 174 POWER OF SALE. sectionB i]^Q mortgage, an injiinctiou may lie until these matters are settled (w). CondJtioiiB -,/^w rni i i 1 of sraiitiiiK 205. ine courts, moreover, take a convenient injunction. ' _ ' precaution against vexatious restraints on the mortgagee's use of his remedy by sale. Thus, iu Jones V. Matthie (o), we find it stated: " If tlie pover is exercised for fraudulent purposes, this court will interfere, and, as in other cases, if the [Hirty actually de])Osits in court the amount due, if will not alloiv the i^ower to he exercised at ally The general rule as to this deposit, is that the sale will be restrained only on payment into court by the mortgagor of the amount which the mortgagee swears to be due him; which rule does not apply where the court can see from the terms of the deed that this amount cannot be due on the security {p). Nor does this rule apply where the relation of client and solicitor exists between the parties, in which condition the court will look at the circum- stances of the case and make such order as will save the mortgagor from oppression, without injur- ing the security of the mortgagee. McLeod v. Jones [q) was such a case, and an injunction was therein granted, conditioned on the plaintiff paying in such sum of money as the court considered would cover the amount actually advanced. (h) More v. Calkins, (Cal.) 24 P. 729 ; O'Brien v. Oswald, (Minn.i 47 N, W. 316. (o) Jones V. Matthie, 11 Jur. 504. ip) Hickson v. Darlow, L. R. 23 Ch. D. 690. {q) L. R. 24 Ch. D. 289. ISJbWCTION. 175 •206. The injunction, where the court thinks fit, J^g^p?" may be interlocutory in its nature. Thus, in i^t^^iw^ Merest v. Murray (/•), it was f,a-anted until the"""* defendant should put in an answer. In llhodes v. Bnekland (.s), it was, in view of the facts, granted to restrain the Tnortga<(ee from selling and parting with the legal estate and title deeds pending a suit to redeem. In the latter case, Lord liomilly thus expressed himself : "I am of opinion that, under the circumstances of the case, the principle of protection of the property pending litigation ought to be applied, so as to induce me to restrain any dealing with the legjd estate until I can determine the right. It is obvious that, if this be allowed {i.e., the conduct to be enjoined), any lirst mortgagee, by collusion with the mortgagor * * * might wholly defeat the rights and title of any puisne incumbrancer. I cannot, therefore, in this state of the case, refuse to protect the property until I see to whom it belongs." 207. Such an injunction may even be granted ex parte. t'.r parte, as in our own case of Connnercial Bank V. Bank of Upper Canada (f), where, pending an appeal from the Court of Chancery, the mortgagee was restrained from sale on an ex 2)arte motion, but with liberty to move at any time to dissolve the injunction (//). Where an injunction has been (D 14 L. J. N. S. 321. («) 1« Beav. 212, (0 1 Chy. Cham. (J-i. (w) For effect of collusive al andonmeiit of injunction, see Mapps v. Sliarpe, 32 HI. liJ. r, t. |, :, -MX II; 5i ; i ti V ' '' Wf P.V I!: S 1 ■ ii < f 170 POWER OF SALE. mSmb' wrongfully obtained the mortgagee will have ^ right to relief for the damages and costs sustained by him through such injunction (r). (B) Actions to Eedeem, Set Aside Sale, and fok Account. Actions tu rerJeem, otc 208. The standard remedies of the owner of the equity are, before sale, an action to redeem; after sale, an action to set aside and for redemp- tion ; and along with these, in either case, their necessary handmaid, the right to an account. Where a sale has been had, and is being impeached, there is no presumption in favor of everything being done properly, but the purchaser or those claiming under him must (in the absence of non-inquiry clause) show a due exercise of the power (w). The degree of misconduct that will serve to upset a sale has been put into an epigram by Mr. Bigelow in his book on Fraud, as follows: A sale under power will be set aside upon proof of the slightest fraud or unfair conduct, but not, as sometimes stated (.r), upon the slightest proof (f fraud or unfair conduct (g). Ke'uhig '^09. Anything that would be ground for an aside sale, jnjunction bcforc sale may be sufficient subse- quently to set aside a sale ; while many (v) Aldrich v. Reynolds, 1 Barb. (N. Y.) Ch. 37. (jo) Bartlett v. Jull, 28 Gr. 140. (x) Citing Longwith v. Butler, 3 Gilm. 42. (y) Ed. of 18S8. p. 340. ^mm ISJUNCTIOS. 177 inogularities that would not be niatorial on which 5rtSSo' to apply for a restrainin*,' order will here suffice. Thus nef?lect to ^i\e notice, or even irre<^ularities ill its contents and mode of service may invalidate tlu' sale (z). This is especially the case where the purchaser was aware of the irre*.mlarities ; for otherwise, thouj^h generally he is bound to inquire, yet the courts are unwillint,^ on the ^a-ound of technical defects in the proceedin«^s, to take his h;u'^ain from a bona ^fidc purchaser. 210. In •'•eneral, as rei^ards dealinj^s between KiBi't to the mortgagor and mortgagee, the right of the"**'""'"''''' former to redeem is a very pronounced and decided right, and one that he cannot be deprived of, by such dealings, unless carried on in a full spirit of fairness without undue pressure, influence, or concealment (a). But it is nuich more difficult to state the law where an innocent purchaser has intervened. It is, indeed, a moot point whether the courts have, in any instance, a discretionary power to allow or disallow anyone to redeem when strictly entitled so to do. On this matter the judges were evenly divided in our case of Simpson v. Smith (&), and the doubt has not ceased to abide with us, unless it be that Mr. Chancellor Boyd has driven it forth by his decision in Martin V. Miles (c), wherein he says : '' Now an equity of redemption is an estate in the land, and in all (^) Cf. Drinan v. Nichols, 115 Mass. 353. (a) Ingalls v. McLaurin, 11 O. R. 380. (h) 1 E. & A. 9. (c) 5 O. R. 404. H.P.8. — 12 m 'TTT ■;' 1 " ' ' , 178 rowKii or ,s'.( /,/•;. aio'an' *''^^*'^ where tlie ri^'lit to ledeeiii lias not been barred by tlie Statute of Jiiiiiitations, it exists as a ri^dit and an estate over wliicli the Court has no discretionary power. The law of Kn«^land is that which hy lej^dslation has been adopted in this ])rovince, touching the limitation of the ri<,dit to redeem. One will search tlie Kn<,dish books in vain to find anything- uph )lding the view that the court exercises discretionary power in ^'rantin^- redemption to a person interested in the equity of redemption " (fl). Hisoretioii as to re •ill. Mow, whether an ecpiity of redemption is after'saie. i'* cflect uiercly the court's opinion that it is e(piitable in the particular case to permit redemption; or whether its bein^- an estate in tlie land makes it something' outside of the discretion of the court, as would seem to be the effect of the above decision ; or whether that decision is not meant to apply to cases where the rights of a purchaser have intervened— this is matter of fine theory , for the main part; and the practice has been to exercise a discretion, in Ontario, —either by limiting the right to redeem by conditions favor- able to the bona fide purchaser or by altogether remitting the mortgagor to some other remedy. Thus, in Carroll v. Robertson (e), it was appointed as a condition of relief against the purchaser, the sale being irregular, that he should be allowed for all improvements made under the belief that he ( Ail. '23t). (»/) Burns v. Thayer, 115 Mass. 8(». . (o) Bright V. Murray, 1 O. R. 172. CHAPTER XL COSTS. 215. It is a gent'i-iil rule that the iiiortjL^agee is gectionB entitled to add to liis security— and, therefore, to J_}^^- deduct from the proceeds of his sale — all expenses nfir*" properly incurred by him in relation to the niort- .i^age debt, or the premises that secure it. Certain of these expenses have already been considered in the chapter on the Proceeds of Sale, but certain others — commonly known as "costs" — may here profitably be discussed ; being disbursements by the vendor for such acts as a jnortgagee selling under power, or otherwise asserting his rights, usually performs througli his solicitor. -.> V) acid costs to security. 216. The exact nature of this right to expenses v;,^^,re„t is admirably set forth in In re Sneyd (//)• doubt," said Lord Justice Cotton, in that case, " No doubt, if the debtor, in his character of mort- gagor, claimed to redeem the mortgage, the court (rt) Or ex parte Fewings, L. R. '25 Cli. D. H'6S. 182 POWER OF SALE. JSSiT* would not grant him that which originally was an indulgence, a departure from the strict tenor of his legal right, without imposing upon him the con- dition of paying the mortgagee, not only the debt which he had contracted to pay by his covenant, but any expenses which had been properly incurred by the mortgagee in her position as such. But that is an entirely different thing from saying that an action of debt could be maintained by the mort- gagee against the mortgagor for those expenses. It is said that the mortgagee's right in a redemp- tion action is founded on an implied contract by the mortgagor to pay these costs, but I am of opinion there is no such contract, but as a condition of redemption that a Court of Equity imposes on the mortgagor the terms of paying all costs properly incurred by the mortgagee for the purpose of protecting the estate or himself IS mortgagee. Costs of sale j)ro- ccedings. 217. (1) Costn of Sale Proceedings. — Expenses reasonably incurred in exercising the power, as for advertising the sale, for solicitor's charges in pre- paring the various steps of the proceedings (6), and for counsel fees advising on those steps (c)— these costs ai'e usually made a first charge on the proceeds, even before the principal and interest (d). While it is true that the mortgagee or his solicitor will not be entitled to charge for improper or futile proceedings in connection with the sale, as by (b) Marsh v. Morton, 75 III. G'il. (c) Allen V. Robbius, 7 R. I. 33. (d) Cf Short Form Act and H. S. O. 1887, c. 102, part II., e. 25. rmr % COSTS. 188 ; 'fl serving notice in such a manner as not to bind the ?*®*ii2" patties entitled thereto ; yet where there is such reasonable doubt of the invalidity of the proceeding as to make it a matter of discretion whether or not it shall be taken — in such case the solicitor will not be deprived of his costs (e). i'l) Costs of Abort ice Sale. — The mortgagee may either, where the action is to redeem, add the costs of an abortive sale to his debt, or, after sale, may deduct the same from the proceeds in hand (/). ■ • '218. (8) Preparation of Mortgage, etc. — Cer- Mortyage tain costs preliminary to the mortgage may or may not be allowed, according to the apparent under- standing between the parties. Thus, as to the preparation of the mortgage deed, if the mortgagee he at the expense of paying a solicitor to prepare it, he will generally be allowed those costs ((/), as well as for the fees of counsel to whom the solicitor may submit the deed (//). Where, however, a mort- gagee, being also a solicitor, acted for the mort- gagor in preparing the mortgage, he was not allowed to add the costs into his security, they l)eing deemed mortgagor's and not mortgagee's costs ii). pi. («) O'Donohoe v. Whitty, 2 O. R. 424 (per Boyd, C.) (/) See Farrer v. Lacy & Co., L. K. 31 Ch. D. 42 ; also Corsellis v. Patman, 4 Eq. 156. ((j) National v. Games, L. R. 31 Ch. D. 592. (h) Nicholson v. Jeyes. 22 L. .T. Ch. 83H. (() Gregg V. Slater, 22 Beav. 314. - . !| ■lip 184 POWER OF SALE. Beotloiu 219-220. title. 219. Again, to add to the security the costs of Search of ^^e iiivestigatioii of title prior to a loan, is by* no means a matter of course. For while, if the bor- rower purports to be offering as security an estate in fee simple, or other certain estate, it is doubt- less within the right of the intending mortgagee to prove that title by investigation ; yet, if the agree- ment is merely to mortgage his estate and interest in the property, then such investigation must be at the risk and cost of the mortgagee {j). Well- advised lenders do not burden their security with such preliminary expenses, but rather deduct from the first advance of money the costs both of searching and clearing up the title, and of prepar- ing and registering the mortgage. Moreover, it is common with Loan Companies in Ontario, either to require a deposit to cover these expenses, or to have in the forms of application for loan a con- dition providing for deducting the same from tlie first advance. 220. (4) Costs in relation to the Debt. — Where, to collect the debt from the mortgagor, proceed- ings are taken, the costs of these are to be allowed. "If a proceeding is taken to enforce the contract against the mortgagor, those costs, if properly incurred, come within the rule, being costs properly incurred in attempting to enforce the rights given by the mortgage contract. The costs of the cor- respondence with the mortgagor stand on the same footing (y)." Nor need such costs pertain partic- 0) National v. Games, L. R. 31 Ch. D. 51)2. Costs of le- (,'al corres- pondence. m COSTS. 185 ularly to the premises charged ; for instance the JaSSaif costs of correspondence with a surety who had ' given a promissory note for part of the debt, have been allowed — being expenses incurred not, it is true, in relation to the mortgage security, yet in ■ relation to the mortgage debt (jj). Again, where expenses were incurred in trying to disencumber lands held under collateral mortgage, they were added to the main security (/<•). As also would be the costs of a mortgagee having himself appointed administrator to the mortgagor's estate, where he was the principal creditor (Z). For the governing rule, as expressed in Ellison v. Wright (m), is that the mortgagee is entitled to be allowed in account against the mortgagor, all expenses properly incurred for the recovery of the mortgage money. 221. (5) Costs in relation to the Propertii or KesisunR aotiou at SeciU'iti/. — All reasonable expenditure for proceed- };^;|^t^^^°(. ings taken to protect the security may fairly be added to that security. Thus, where the mort- gagor's solicitor had — unknown to the mortgagee — a lien on the deeds of his client, the mortgagee being forced to pay the costs of resisting that lien, was held entitled to add them to his securitv (//)■ Where, also, the mortgagee resisted an action, at the instance of the mortgagor, he was allowed ', . V-' ' M M iU) National v. Games, L. R. 31 Ch. D. .592. {k) Wells V. Trust & Loan Co,, •( O. R. 170. (/) Ramaden v. Langley, 2 Vern. 536 (m) .H Ru99. 45S. (h) Pelly V. Wathiin, 7 Hare, 351. 18() POWER OF SALE. 22iS" ^^^^^} '^^ against the mortgagor's puisne incuni- ~~~~^ brancers (o). 222. (6) Costs of Successful Litigation. — - Wliere litigation is entered on by the nioitgagee, and'results in a gain to the property or security, he is allowed the costs of such litigation, although he may have gone to great expense in the matter ; as was held in one case where heavy charges were incurred in defending the estate against an alleged entail {p). Successful appeals from adverse decisions entitle the mortgagee to add to his security the costs of the litigation {q). No costs unless liti},'iilion sncccoils. 223. (7) Costs of Unsuccessful Litigation. — The rule, as acted upon in our case of Wells v. Trust & Loan Co. [r), is that a mortgagee is not allowed to add to his mortgage debt the costs of unsuccessful proceedings at law instituted by him- self, and not undertaken with the approval of the mortgagor. Where, however — as we may infer from the same case — the litigation has resulted in a partial benefit to the estate, and the beneficial proceedings can be separated from the rest, the costs of the former will be allowed. This rule as to unsuccessful litigation finds a frequent applica- tion in cases where, after a sale held under power, an action for specific performance lias failed against the purchaser (s). (o) Barry v. Stawell, 1 Dr. & War. 018. (p) Ramsden v. Langley, 2 Verii. 53(). (q) Addison v. Cox, L. R. 8 Ch. 7G : Henry v. Ryan, 1 Knapp, 388. (r) 9 O. R. 170. (s) Peers v. Ceeley, 15 Beav. 208. i 'II COSTS. 187 (8) Cosffi unnecessarily onerous. — Even where ^^ajf tlie proceedings are in themselves of a proper nature, they must not be conducted in an un- necessarily expensive manner, as, for instance, by executing several powers of attorney where one would do (f). •224. (9) Costs in Action to Redeem.— '' The ll)^}:'^',''^^ general rule is that a mortgagor coming to redeem co°ts*to^*^' pays costs when, upon taking accounts, a bahmce is found in favor of the mortgagee («)•" t)r, as enunciated in Loftus v. Swift (r), " A mortgagee is always considered as entitled to costs, unless there be something of positive misconduct." Merely extending his claim beyond what the court finally decides that he is entitled to, is no ground for refusing him his costs (iv). This rule has been drawn to a fine wire in Little v. Brunker (//), where tlie mortgagee claimed $905.00, was allowed 81. -i^, and yet was held entitled to the benefit of the rule. I'li). " It is only in a rare case that costs ought j^)^!^'?','^^ to be given against a mortgagee who brings for-'"'"" ward a case which is fairly open to argument " (,/■). But "he shall not onerate his pledge with costs which he occasions by an unjust defence " (//). He (0 Goodhue v. Carter, IChy. Cham. 13. («) Little V. Brunker, 28 Gr. Iftl. (i) '2 Sch. ct Lef. ()i2. See also Gammon v. Stone, 1 Ves. H3',). (ic) See also Norton v. Cooper, ii DeG. M. & G 728 ; Kinnaird v. Trollope, L. R. 42 Ch. D. 610 ; In re Watts, L. R. 22 Ch. D. r,. (.r) Stirling, J., in Bird v. Wenn, L. R. 38 Ch. D. 21i>. (y) Mecatta v. Murgatroyd, 1 P. W. 395. See also Trecothick'a Case, 2 Ves. A- B. 181. \ I \'. , ' h" 188 Seotlona 225-226. Tender or payment. POWER OF SALE. may be deprived of, or even compelled to pay costs occasioned by his unsuccessfully or improperly resisting the right of the opposite party to redeem {z). Thus, in the old case of Baker v. Wind {a), costs were given against the mortgagee by Lord Hardwicke, who rennirked : " This is the strongest case that ever came before me, for the decreeing a redemption, where that redemption was contro- verted ; and also to make the mortgagee, who opposed it, not only lose but pay costs ; there being such a series of transactions in which it was con- stantly admitted to be redeemable, as it clearly was." 22(). So where there was a tender, with an appropriation of money for purposes of tender, and the same was refused, costs were given against the mortgagee (b). And, generally, any improper or fraudulent conduct of the mortgagee, when over- paid, is sufficient to cast him in costs (c). The rule is still so far in favor of the mortgagee that the Court of Appeal in England has been held to have no jurisdiction to entertain an appeal against an order allowing costs to a mortgagee, notwith- standing charges of misconduct. But an appeal does lie if the mortgagee has been deprived of his costs on the ground of misconduct (d). {:) Kinnaird v. Trollope, nupra. See also Tomlinson v. Gregg, 15 W. R. 51. {,i) 1 Ves. (Sen.) 160, (1748). (/;) See Detilliu v. Gale, 7 Ves. 583. (c) Archdeacon v. Bowes, McClel. 149 ; Morony v. O'Dea, 1 Ball & K. 109; Snag{» v. Frizell, 3 J. & L. 353; Powell v. Trotter, 1 Dr. A Sra. 388. (d) Charles v. Jones, L. B. 33 Ch. D. 80. ■1 i ' COSTS. 189 ■!g' 1"' •2-27. (10) Costs in Action for Account after ^^^^ Sale. — Boultoii v. Rowland (e), which seems to be law ill Ontario, is to the effect that where the mortgagee sold under power, and the mortgagor afterwards brought action against him for account and payment over of the surplus, and on taking the account a balance was found due the mort- gagor, he was entitled to his full costs of suit as against the mortgagee. " The case seems to be the case of tiie defendant having received money to the use of the plaintiff, and being sued for that money" (/). Where the balance is found to be against the mortgagor, of course the rule would be in favor of the mortgagee, as above stated ; so the onus of costs will sway with the balance of account. 228. (11) Costs ivhere unfoundeil allegations q/'^,°oweT Fraud. — Frequently the fault appears in proceed- Traud^im- ings for setting aside a sale and for redemption, aiiegea.^ that strong declamatory allegations of fraud and misconduct are made and not proved against the mortgagee. Of this practice Chancellor Spragge has obsers'ed : " It is a great impropriety to put charges of this kind upon the records of the court, unless there is really something tangible in the way of evidence to support them " {g). More serious still is the consequence that the courts tax the plaintiffs for this luxury of Billingsgate by refusing (e) 4 O. R. 720. it) lb. Proudfoot, J., followed by Boyd, C , iu Beatty v. O'Connor, 5 0. R. 717. [fl] Thompson v. Holman, 28 Gr. 35. J'- I i: -m '"m 'ii. 1<)() I'OWKR itF SALK. *L*-**-il? • them their costs, thoui-h otherwise well entitled to 228-329. ' '^ the same (h), or even nnilct them tlie costs of the injured mortgagee (/). Uui^ No protlt OOHtS. I 11 2'29. (12) Costs of (I Solicitor-Mortfjagi'c. — Where tht mortgagee is himself a solicitor, it is in his power to save the mortgagor a great part of the costs of the proceedings hy himself acting in the sale. For while he himself will be recouped expenses which he has incurred, he will not be remunerated for his personal trouble ; Ije will he allowed out-of-pocket disbursements, but not profit costs. This rule has very recently been acted upon by Mr. Justice Stirling, in Stone v. Lickorish ( /). His Lordship quotes portions of the judgments in In re Wallis (A), which was a case of solicitor- mortgagee, and we may adopt his (juotations. " Lord Esher says : ' I think it is consistent with every principle of justice that a man should not be entitled to charge for costs and expenses when lie has not incurred any.' Lord Justice Fry says : ' So far as I am aware, no case is to be found in which a mortgagee has been alknved to charge against the mortgagor, as part of his costs charges and expenses properly incurred, remuneration for work done or labour undertaken by himself per- sonally (/). On the contrary, the Court has often (/() Beatty v. O'Connor, 5 O. R. 747 ; Latch v. Fiu-long, 12 Grant, 308 ; llichmond v. Evans., 8 Grant, 508. (/) Cowdry v. Day, o Jur. N. S. 1200. (j) L. R. 1891, 2 Chy. Div. 363, approving In re Wallis, 25 Q. B. D. 1715 ; Sclater v. Cottam, 3 Jur. :N. S. 680 {k) 25 Q. B. D. 176, approving Sclater v. Cottam. (/) See, however, In re Donaldson, L. R. 27 Ch. D. 544. f COSTS. !>l said ' Thoii«4li yon may recover, as part of your aaV-So' costs, charges and expenses, payments which you. have made for work done in rehition to the mort- ;^age debt or the mortgage security, yet, if you choose to do the work yourself, you cannot charge for it.' Lord Justice^ Lopes says : ' What are the ordinary terms of redemption of a mortgage ? Those terms are, the payment by the mo' tgagor of principal, interest and costs — that is ' costt;' in the ordinary sense of the word, and not remuneration for services rendered by the mortgagee himself.' " '2>J0. The rule is a general one, comprising — in tlie absence of special contract between the mort- gagor and mortgagee — all services in relation to the mortgage, and " is not limited to solicitors, but extends to any mortgagee who is capable of giving, and who does give his own personal services in relation to the mortgage debt or security (/>/)." This law is derived from Sclater v. Cottam (//),Pnncii.ies which lays down two sound principles: *' Onev.'cottam. principle is that the mortgagee is entitled, as between him and the mortgagor, to have taken into account, on a suit to redeem him, any costs which he has incurred in protecting his title to the mortgaged property. Another principle is that the mortgagee, though he may be entitled to certain expenses properly incurred in relation to the mort- gaged property, as the expenses of employing a collector, cannot himself charge for his own trouble. (m) lb. 25 Q. B. D. 180. ill) 3Jur. N. 8. (580. . n..[:', L' 102 POWER OF SAl.K, iliii "mSm' ^'*^^' "^^^'iii^'^ — h** >»*>^.y employ a collector ; hut if lir liiinself takes the tronhle of doiii^" it, althoii^Mi it would not he a ^'reater hurthen to allow him tht remuneration, the principle is that he shall not he allowed it in his accounts." In Field v. Hop- kins (o), where one of the mort^oigees was m solicitor, and the other an auctioneer, Mr. Justice Kay not only disallowed the solicitor profit costs foi- the making' of the mort^^a<,'e deed, hut also can- celled a fee to the auctioneer as valuator ; and even went so far as to declare that the five ju[uinea fee taken hy the auctioneer, " which he could not pos- , sihly have claimed without a special contract, couhl S?at*etw''" "o/ he the subject of a valid contract " — on the prin- ciple in Jennings v. Ward (j>), that "a man shall not have interest for his money, and a collateral advantage hesides for the loan of it, or clog the redemption with any by-agreement." Such, then, is the rule as to the costs of a solic^itor-mortgagee, and it is therefore the practice, probably wisdom, of such as are not of a mind to lighten by personal exertions the burdens of their mortgage debtor, rather to perform professional services throu^ another solicitor. Can proHt costs. Igl Third par- ty section. 231. (13) Taxation.— The 42nd section of E. 8. O. 1887, c. 147, provides for the same right in a " person not being chargeable as the principal party " — who has to pay or has paid the costs of the solicitor — to tax those costs as the principal had. (o) L. R. 44 Ch. D. 530, See also In re Alberts, L. R. 43 Cb. D. ".2. (7^) 2Vern. 5-20. ■pwmiiipp COSTS. loa Nor does payment preclude such taxation, if the ^f-sSa' application to tax be within one year, and there 1)0 special circumHtances to warrant same. Under this section (42nd), in lie Crerar v. Muir((/), the Master in Chambers decided that when a lirst mortgagee sells under the power of sale contained in his mortgage, a subsequent mortgagee is entitled to an order to tax the tirst mortgagee's costs of exercising the power of sale, such costs to be taxed as between solicitor and client. The same right extends not merely to a second mortgagee, but to any other " assign " of the mortgagor as, for instance, a trustee in insolvency {r). 282. A fuller explanation of this law as to tax- ,«';,>'<:"'»"■ ation is to be found in Be McDonald c^' Co. (.s), where, the first mortgagees having sold, and paid their solicitor's bill, a subse(|uent incum- brancer obtained from the referee, on motion, an order for the taxation of the mortgagee's costs. Mr. Justice Proudfoot (t) took this view : " Under the third party section (//),. if the mortgagee have precluded himself from taxing the bill, the mort- ^'agor, who is to stand simply in his place, cannot do it. And the section does not authorize a taxa- tion as against the mortgagee. If he has paid to the solicitor more than he ought to have done, the only remedy the mortgagor has is by his bill for an (iii. s. 44 of the Solicitors' Act, to an applicant, of tlie bill of costs of a sale under power, while regarded as for the purposes of a reference to taxation, does not necessarily mean that the applicant has the right to tax the bill. An order for such taxation should be obtained on motion ; in Be MofEatt, a Solicitor {2), which is a case bearing on these questions, a pvcecipe order for taxation was set aside as there vvere two points in dispute, ^iz., whether payment as such had been made by the mortgagees to the solicitor, !ind whether the %. (r) Now 8. 43, of R. S. O. 1887, c. 147. («•) Citing a case of Morgan v. Davy ; and distinguishing In ir Glusi, H P. n. WH. (./•; H P. R. H72. (./) Ferguson v. English & Scottish T. Co., H P. H. 404. [:) \-2 P. P. 240. COSTS. 195 mortgagees had precluded themselves from the ^^^ ridit to tax the bill. . 235. Questions may frequently arise as to the ^^^lXi°\, scale on which costs in mortgage proceedings should be taxed. The case of Morton v. Hamilton Provident & Loan Society (o) bears on this. After sale under power, the mortgagees claimed $182.61, hut, on account being taken, $20.07 was found due to the mortgagor. It was held that, laying aside the question of the whole amount of the mortgage money ($5,705), the amount involved was $202.68, and therefore the case was not within liule 515 0. J. A. (h), and the costs were properly taxed on tlic higher scale. Before leaving this case we may add the rest of the decision : the claim of a mortgagor against a mortgagee for an account in such a case is not a legal one, as for a money (Iciiiand, but a proper subject for equitable relief. tax. 230. The right of taxation extends to the detail Ji^f;;^;/'' of the costs of proceedings where such costs are allowed, and is not to be confounded with the right ht'fore mentioned of the mortg.vj^or or his assigns to exclude items — entire groups of costs included —from the mortgagee's account. i(() 10 p. R. <)36; 11 p. R. 82. (/*) Now C. R. 1219. mm »F IttI CHAPTER XII. RELATION TO OTHER REMEDIES. Section •2>]7. Legally speaking, the proper exercise of — — — the power of sale in nowise hinders the mortgagee Remedies ^ _ . . .oncunent f roiii pursuing liis other lawful remedies to enforce his debt, nor does the pm'suit of those other remedies technically impede the exercise of tlie power of sale. All the remedies afforded by the mortgage contract are concurrent («), or, as ^Ir. Jones has called them, cumulative remedies {h). Thus, in Beatty v. O'Connor (c), the mortgagees, besides sale proceedings, had taken and succeeded in an action on the covenant, and an action of ejectment, and what is of equal importance, wcic held entitled to all three sets of costs, those of the two actions being given to them by the judgments they had obtained, and those of exercising the power of sale under the statutory form of mortgage («) III re Kilday, W. N. (1H8H), \)4. (h) Jones, 3rd ec^. 1773. (.) •> O. R. 731. RELATION TO OTHER REMEDIES. 197 ■ as a matter of contract, (cc) Sometimes, moreover, as in the Short Form Act, the other remedies of the mortgagee are expressly, if unnecessarily {d), re- served in the clause creating the power. 288. Foreclosure. — Sale under power has some times been termed a species of foreclosure ; and, wliile the right to sale in nowise legally conflicts with the right to foreclose, yet a complete sale of the property leaves nothing to foreclose. There may however, be a sale of part of the premises, and foreclosure of the rest (e). Where foreclosure has already been had, a deed reciting the power }iiay have the unintended effect of opening the foreclosure (/). From our case of Kelly v. Im- l)erial (g), it would almost seem as if a bad fore- closure could be turned by subsequent deed into a valid sale under power. For in that case there was Section 237-23S. Power of Bale and forocloRiire Kelly V. Iinjierial. (ir) The right of the mortgagee to costs, '■ resting substantially upon contract, can only be lost or curtailed by such inequitable conduct on the part of the mortgagee as may amount to a violation or culpable iieolect of his duty under the contract." Cotterell v. Str" its application to mortgages subsequently executed, it is applicable to the present case, if there is any condition or proviso contained in these mortgages pursuant to which ' any demand or notice requiring payment, or declaring an intention to proceed under and exercise the power of sale, has been made.' Upon referring to the mortgages it will be found there is no such proviso " (?•). Hence the statute, though retrospective as to the date of the instruments to which it shall apply, is inapplicable to such as make no provision for notice. 244. Huhsequent Proceedings of the Mortgagor. l'{^°^^^\'^'^y — As a rule, the mortgagee's right to exercise his*'"'^"''' power of sale will be hardly at all affected by the subsequent acts and proceedings of the mort- gagor. Thus, where a mortgagor became bankrupt, the mortgagee was not compelled to go in under the act, but might proceed to sell under his power (s). Much less, then, would he be concerned by assignments for the benefit of creditors under the incoercitive Ontario statute. But however little danmified he may be by the subsequent dealings (^f the mortgagor, yet it seems the mortgagee has still the right to apply to the court to remove a ijt>. (r) Gait, C.J., in Canada Permanent Bldj?. Soc. v. Teeter, lU O. R. (») Gordon v. Ross, 11 Gr. 124. '202 POWER OF SALE. sectiwu aiibsequent fraudulent conveyance which inter- ■ feres, or may interfere, with the reahxation of his claim (^). 245. Conclusion. — To some it may seem that the mortgage-creditor is too heavily armed with remedies that may be turned to the oppression of the mortgagor ; and to such may be commended what Lord Chancellor Cottenham has so aptly said concerning the power of sale (w) : — " Such a power as this may no doubt be used for purposes of oppression, but when conferred, it must be remembered that it is so by a bargain between one party and the other, and it is for the party who borrows to consider whether he is not giving too large a power to him with whom he is dealing." (t) Parr v. Montgomery, 27 Gr. 521. (h) See Jones v. Mathie, 11 Jur. 504. APPENDIX A. MD PORTIONS OF STATUTES Pertaining to tlie Subject of tliis WorJc. [|1! i t li APPENDIX A. STATUTES AND PORTIONS OF STATUTES PERTAIN- ING TO THE SUBJECT OF THIS WORK. 246. K. 8. 0. 1887, CAP. 54. Section 246. Wliere n lunatic i-^ tnistoo or inortt,'nt;t!L' hifi L'oui- niittee may act, and how far. [The two following sections relate to the case of a lunatic mortgagee. See supra, paragraph-sections 27, 144] . 14. Where a lunatic is seized or possessed of real estate, by way of mortgage, or as trustee for others in any manner, the connnittee may apply to the court for authority to convey such real estate to the person entitled thereto, in such man- ner as the court may direct ; and thereupon the like proceedings shall be had as in the case of an appli- cation to sell the real estate ; and the court upon hearing all the parties interested may order a con- veyance to be made ; and on the application of any person entitled to a conveyance, the committee may be compelled by the court, after hearing all parties interested, to execute the conveyance. K. S^ 0. 1877, c. 40, s. 70. 15. Every conveyance, mortgage, lease andi"«tru- assurance made by the connnittee under direction tlJe'imu- of the court, pursuant to any of the provisions of be"ii this Act, shall be as valid as if executed by the lunatic when of sound mind. R. 8. 0. 1877, c. 40, s. 71. nittee to «;." . 20G POhF.It OF SAl.l: Section nAn ■ 247. it^ i . R. S. O. 1887, (^AP. 100. AN ACT RESPECTINC4 THE LAW AND TRANSFER OF PROPERTY. Interpretation, s. 1. "NVoRDS OF Limitation Unne- cessary, 8. 4. Conveyance by a person to HIMSKLF, 8. 5. Receipt in deed sufficient, 8. 6. Rights of purchaser as to execution of deed, s. 7. Conveyance to include whole ESTATE, 8. 12. Provision for sales free from incumbrances, s. 15. Payment into court and ap- plications, 8. 10. Implied covenants, s. 17. Powers, mode of execution, etc., ss. 18-20. Auctions of estates, ss. 21- i 26. Rent charge, effect of par- tial release, s. 27. Improvements made undeh mistake of title, ss. 80-82. Purchases of reversions, ss. 88-35. Purchaser for value with- out notice, 8. 86. Frauds on sales and mort- gages, 8. 87. liiterpvc- tatioii. TTER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Where the words following occnr in this Act they shall be construed in the manner hereinafter mentioned, unless a contrary intention appears : AI'l'F.SDlX A. 207 1. " Jjund " shall cxtond to iiicssiui^'es, landH, ••«"*» tenements tmd lioivditanionts, whether corporeal..—;, — or incorporeal, and to any nndivided share thereof, and to any estate or interest therein, and to money subject to be invested in the pnrchase of land or of any interest therein. K. S. O. 1877, c. 5)8, s. 1 (1); 41)' Y. c. 20, s. ^3 (2). 2. '' Mort^a^e " shall include every instrument' MortKafie' by virtue whereof land is in any manner conveyed, assigned, pledf>ed or charged as security for the repayment of money or money's worth lent, and to be reconveyed, re-assigned or I'eleased on satisfac- tion of the debt. K. S. (). 1877, c. i)8, s. 1 (8). 8. "Mortgagor" shall include every person l)y|;^°{.': whom any such conveyance, assignment, pledge or charge as aforesaid is made. 4. "Mortgagee" shall include every person to'^o't whom or in whose favour any such conveyance, assignment, pledge or charge as aforesaid is made or transferred. 1^. S. O. 1877. c. 1)8, s. 1 (4, 5). ■"). "Property" shall include real and iiersonal ; pioi>ii'. 1 • '^ Imi). Act, proi)erty, and any debt, and any thing in action, gfo^'^' and any other right or interest. 49 Y. c. 20, s. 8(1).' 41. aiice. ' (). "Conveyance " shall include feoffment, grant, • convey. assignment, appointment, lease, settlement, and otiier assurance, and co\enant to surrender, made i)y deed, on a sale, mortgage, demise, or settlement (if ;iii\ pr()})erLy or on any other dealing with or for w S f if 208 Section 247. "Couvey-" " Tur- chaser.' I'uicliase" Words of liiiiita- tion uu- uecessary. lull), -^ct, see. 51. I'rovisiou foi- all tho estiito, etc Il<1|i Act, sec. ()'!. POWER OF SALE. any property; and "convey" has a meaning cor- responding with that of conveyance. K. S. 0. 1877. c. 98, s. 1 (2); 49 V. e. 20, s. 8 (8). 7. "Purchaser" shall include a lessee or mort- gagee, and an intending purchaser, lessee or mort- gagee, or other person, who, for valuable consider- ation, takes or deals for any property ; and " pur- chase " has a meaning corresponding with that of purchaser ; but sale means only a sale properly sti called. 49 V. c. 20, s. 3 (0). 4- (1) In a deed, or other instrument, it shall not be necessary, in the limitation of an estate in fee simple to use the word heirs ; or in the limita- tion of an estate in tail to use the words heirs of the body ; or in the limitation of an estate in tail male or in tail female, to use the words heirs male of the body, or lieirs female of the body. (2) For the purpose of such limitation it shall be sufficient in a deed, or other instrument, as in a will, to use the words in fee simple, in tail, in tail male, or in tail female, according to the limi- tations intended, or to use any other words sutli- ciently indicating the limitation intended. (8) Where no words of limitation are used, ii conveyance shall pass all the estate, right, title, interest, claim and demand, which tlie conveying parties espectively have, in, to, or on the propert\ conveyed, or expressed, or intended so to be, or which they respectively have power to convey in. to, or on the same. This sub-section applies only if and as far as a contrary intention does not APPENDIX A. 209 appear from the couveyance, and shall have effect ^^2w subject to the terms of the conveyance and to the provisions therein contained. (4) This section appUes only to conveyances made after the 1st day of July, 1880. 49 V. c. 20, s. 4. « 5. Freehold land or chattels real may be con-^'""vey- *^' J aDce by a veyed by a person to himself jointly with another Uf^g",,*" person, by the like means by which the same might secfax**'' be conveyed by him to another person ; and may, ill like manner, be conveyed by a husband to his wife and by a wife to her husband, alone or jointly with another person. 11. S. 0. 1877, c. 95, s. 10 ; 49 V. c. 20, s. 6. See nupra, paragraph-sec- tion 168., 248.; [So also section 8 of the Mercantile Amendment Act, R. S. 0. 1887, c. 122, enacts :— 8. Any property, real or personal, may be con- ;^|'«^«"^-j veyed or assigned by a person to himself jointly J>ei?,'uI.'i-'° with another person by the like means by which it" miglit be conveyed or assigned by him to another person, and may in like manner be conveyed or assigned by a husband to his wife and by a wife to her husband alone or jointly with another person. H. S. 0. 1877, c. 95, s. 10 ; 49 V. c. 20, s. 0., 6. A receipt for consideration money or securi-f/g"^?,fi.;\|,\'. ties contained in the body of a conveyance shall 11',?,'.! Act, be a sufiicient v.ischarge to the person paying or'* '' H.l'.S. — 14 mW^Tr^^ I ■ ,- ■'.. 210 Section 448. POWER OF SALE. delivering the same, without any further receipt being indorsed on the conveyance, and shall, in favour of a subsequent purchaser not having notice that the money or other consideration thereby acknowledged to be received was not in fact paid or given wholly or in part, be sufficient evidence of the payment or giving of the whole amount thereof. 49 V. c. 20, s. 10. [For former law see Kennedy V. Green, 3 My. & K. 699, 710; Greenslade v, Dare, 20 Beav., 284, 292.1 KiBhtsof 7 On a sale, the purchaser shall not be entitled purchaser " ' r uon^or^^'to require that the conveyance to him be executed ^nncimse ^^^ j^^^ presGuce, or in that of his solicitor, as such ; Imp. Act, 8- « but shall be entitled to have, at his own cost, the execution of the conveyance attested by some per- son appointed by him, who may, if he thinks fit, be his solicitor. 49 V. c. 20. s. 11 (1). anceto" 12. (1) Every conveyance of land, unless an hmlS*^" exception is specially made therein, shall be held the'ievei- aud coustrucd to include all houses, out-houses, the estate, edificcs, bams, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, water-courses, lights, liberties, privileges, easements, profits, com- modities, emoluments, hereditaments and appur- tenances whatsoever, to the lands therein comprised, belonging or in anywise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof; and if the same purports to convey an estate in fee, also the reversion or reversions, remainder and reniaiu- APPEXDIX A. 211 ders, yearly and other rents, issues and profits of ^^'*^ the same lands, and of every part and parcel there- of, and all the estate, right, title, interest, inherit- ance, use, trust, property, profit, possession, claim and demand whatsoever, of the grantor, in, to, out of, or upon the same lands, and every part and parcel thereof, with their and every of their appur- tenances. (2) Except as to conveyances under the former Acts relating to short forms of conveyances, this section applies only to conveyances, made after the 1st day of July, 1886. K. S. 0. 1877. c. 102, s. 4; 49 Y. c. 20, s. 5. [^This section corresponds to section 6 of, the Imperial Conveyancinj? Act of 1881,44-5 V. c. 41. As to Mie meaninj; of "conveyance" here, see 8. 1 (6) supra. Compare the fjeneral words in section 4 of the Short Form (Mortgages) Act, R. S. 0. 1887, c. 107; and see thereon Winfield v. Fowlie, 14 O. R. (1888) 102.] 15. (1) Where land subject to any incum- brance, whether immediately payable or not, is sold by the court or out of court, the court inay^ if it thinks fit, on the application of any party to the sale, direct or allow payment into court — in ease of an annual sum charged on the land, or of a capital sum charged on a determinable interest in the land — of such amount as, when invested in securities approved by the court, the court con- siders will be sufficient by means of the dividends thereof to keep down or otherwise provide for that charge ; and — in any other case of capital money charged on the land — of the amount sufficient to meet the incumbrance and any interest due there- on ; but in either case there shall also be paid into Provision for sales froe from iucum- brances. Iiiil). Aotv s. 5. mww^ 212 POWER OF SALE. 248. Section court such additional aiiioiuit as the court con- siders will be sufficient to meet the contingency of further costs, expenses, and interest, and any other contingency except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the court for special reasons thinks lit to require a larger additional amount. (2) Thereupon the court may, if it thinks tit. and either after or without any notice to the incumbrancer as the court thinks fit, declare the land to be freed from tlie incuml)rance ; and make any order for conveyance, or vesting order, proper for giving effect to the sale ; and give directions for the retentioii and investment of the money in Court. (8) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct pajinent or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof. 49 V. c. 20, s. 12 (1-3). KeKuia- 16, (1) Payment of money into court shall imymmits eft'cctually exoueratc therefrom the person makin,y into court ii , andappii- tlic paymcut. cations. 8. Oil.' ' (2) Every application to the court shall, except where it is otherwise expressed, be made in cham- bers, and on notice. (3) On an application l)y a purcha^;er, notice shall be served in the tirst instance on the vendor. APPESDIX A. 213 (4) On an application by a vendor, notice shall ^^}!^ be served in the lirst instance on the purchaser. (5) On any application, notice shall be served on such persons, as the court thinks fit. (6) The court shall have full power and discre- tion to make such order as it thinks fit respecting the costs, charges or expenses of all or any of the })arties to any application. 49 Y. c. 20, s. 19. 249.] 17. (1) In a conveyance made on or after the tL^bfim-* ^ 1st day of July, 188G, there shall, in the several imp- Act, •1-- • TIT 1 44-45Vic.C. cases m this section mentioned, be deemed to be^i'"''- included, and there shall in those several cases be implied, covenants to the effect in this section stated, by the person or by each person who con- veys, as far as regards the subject-matter or share of subject-matter expressed to be conveyed by him, w ith the person, if one, to whom the conveyance is made, or with the person jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the conveyance is made as tenants in com- mon, that is to say : (c) In a conveyance, the following covenant ?Dce8°br''' , IT- trustee by every person who conveys, and is mortgagee, expressed to convey, as trustee or mort- '^*=*' '• '^■ gagee, or as personal representative of a deceased person, or as committee of I m Lu 214 Section 249. Against in- cumbranc- es. On convey ance by beneficial owner. Where covenants not im- plied. li POWER OF SALE. a lunatic so found by inquisition or judicial declaration, or under an order of the court, which covenant shall be deemed to extend to every such person's own acts only (namely) : That the person so conveying has not exe- cuted, or done, or knowingly suffered, or been party or privy to, any deed or thing, whereby, or by means whereof the subject-matter of the conveyance, or any part thereof is, or may be im- pep ,', charged, affected, or incum- be?v:' i' title, estate or otherwise, or whereby or by means whereof the per- son wb • so ' • veys is anywise hindered from convtyiLg ihe subject-matter of the conveyance or any part thereof, in the manner in wdiich it is expressed to be conveyed. 49 V. c. 20, s. 13 (1 f). (2) Where in a conveyance it is expressed that by direction of a person expressed to direct us beneficial owner another person conveys, then the person giving the direction, whether he conveys and is expressed to convey as beneficial owner or not, shall be deemed to convey, and to be expressed to convey as beneficial owner the subject-matter so conveyed by his direction ; and a covenant on his part shall be implied accordingly. (3) Where in a conveyance, a person conveying is not expressed to convey as beneficial owner, or as settlor, or as trustee, or as mortgagee, or as per- APPENDIX A. 215 soiial representative of a deceased person, or as ^^^ coinmittee of a lunatic so found by inquisition, or under an order of the court, or by direction of a person as beneficial owner, no covenant on the part of the person conveying shall be by virtue of this section implied in the conveyance. (4) The benefit of a covenant, implied as afore- ^o^'^^nauts. said, shall be annexed and incident to and shall go with the estate or interest of the implied cove- Uiintee, and shall be capable of being enforced by every person in whom that estate or interest is for the whole or any part thereof from time to time vested. (5) A covenant implied as aforesaid, may hel varied or extended by deed, and as so varied or extended, shall, as far as may be, operate in the lilve manner, and with all the like incidents, effects and consequences, as if such variations or exten- sions were directed in this section to be implied. 4'.) V. c. 20, s. 13 (2-5). ariatioii of coven- ants. Powers. 250.1 18. A deed hereafter executed in the presence Mode of of, and attested by two or more witnesses in the rowers- manner in which deeds are ordinarily executed, and attested, shall, so far as respects the execution and attestation thereof, be a valid execution of a jr 210 POWER OF SALE. ^*26o° power of appointment by deed or by any instni- ment in writing, not testamentary, notwithstand- ing that it is especially* required that a deed or instrument in writing, made in exercise of such power, shall be executed or attested with some additional or other form of execution or attestation or solenmity : but this provision shall not operate to defeat any direction in the instrument creating the power, that the consent of any particular per- son shall be necessary to a valid execution, or that any act shall be performed in order to give validity to any appointment, having no relation to the mode of executing and attesting the instrument ; and nothing herein contained shall prevent the donee of a power from executing it conformably to tlie power, by writing or otherwise than by an instrument executed and attested as an ordinary deed, and to any such execution of a power tliis provision shall not extend. E. S. 0. 1877, c. 9s(?vve. Seller not to bill ivt unreserved ■^ale. At reserved sales the seller iiinv bid Seller not authorized to i>nr- chase. Apiilica- tion of ss •31-2-). Keleaseof part of land charycd not to he an ex- tinguish- ment of the charfio on the rest etc. Imp. Act, '22-23 V. C.H5 s 10. s. 12. 22. Unless in the particulars or conditions of sale by auction of any land it is stated that such land will be sold subject to a reserved price, or to a right of the seller to bid, the sale shall be deemed and taken to be without reserve, li. S. 0. 1877, c. 08, s. 13. 23. Upon any sale of land by auction, without reserve, it shall not be lawful for a seller or for a puffer to bid at such sale, or for the auctioneer to take, knowingly, any bidding from the seller or from a puffer. R. 8. 0. 1877, c. 98, s. 14. 24. Upon any sale of land by auction, subject to a right for the seller to bid, it shall be lawful for the seller or any one puffer to bid at such auction, in such manner as the seller may think proper. E. S. 0. 1877, c. 98, s. 15. 25. Nothing in the next preceding four sec- tions contained shall be taken to authorize any seller to become the purchaser at the sale. R. S. 0. 1877, c. 98, s. 16. 26. The next preceding live sections shall not apply to any sale which took place before the 4th day of March, 1868. R. S. 0. 1877, c. 98, s. 17. 27. The release from a rent-charge of part ot the hereditaments charged therewith shall not extinguish the whole rent-charge, but shall operate only to bar the right to recover any part of the rent-charge out of the hereditaments released, APPFSDIX A. 219 without prejudice, nevertheless, to the rights of ^^^^ all persons interested in the hereditaments re- iiiaining unreleased, and not concurring in or confirming the release. B. S. 0. 1877, c. 95, s. 1. Improvements Under Mistake of Title. [See supra, Chapter X.J 30. Ii^ every case in which a person makes last- Jif.p^oTiug landn to iiiu' improvements on land under the belief that the h*ave a uen land is his own, he or his assigns shall be entitled to a lien upon the same to the extent of the amount by which the value of the land is enhanced by such improvements; or shall be entitled or may be re- (jiiired, to retain the land if the court is of opinion or requires that such should be done, according as may, under all the circumstances of the case, be most just, making compensation for the land, if retained, as the court may direct. K. S. 0. 1877, V. 0.5, s. 4. 31. Ill case an action for the recovery of land is brought against a person who, after any line or limit has been established according to The Act re- fij'ccting Surveyors and the Survey of Lands, is found, in consequence of unskilful survey, to have iijq:)roved on lands not his own, the Judge before whom the action is tried shall assess or direct the jury to assess damages for the defendant for any loss he may sustain in consequence of any improvement made before the commencement of the action, and also assess or direct the jury to assess the value of As to cases whore, unskilful survey a j)arty has improved lauds after- wards found to bolouR to his neigh- bour, liev. State. 15-2. i 220 riaint>ii 32 In all cases inwhicli the Judj;'!' or tlie iuiv tuo'time" before whom such action is tried, assess damages I.tro'i-i'to" for the defendant as provided in the next precediiiu u'ivc ii|) till' . ,, . , 111' lan.is on R. section, lor unprovenieuts made upon land not his imp'mvL'''*' ht to beo))ene(l or set ii. Reitint,- T • 1 1 I .asido imr- aside on the i>roiind of undervalue, the onus ot f''"i**e of u '^ levirsioii proviniL*- undervalue shall lie upon the plaintiff. mhvcTi'iw'.s 1{. S. 0. 1877, c. 9o, s. .5. 35. ^^o purchase made after the said date Z;o/m [;jj;j.';5'^^^.,, fide, and without fraud, or any reversionary interest uotHtTrJtea ill real or personal estate, shall he opened or setvaiu"'*' aside on the ground of undervalue. 1\. S. (). 1877, c. Do, s. (>. Purchaser for Value Without Notice. 36. It shall in no case he necessary, in order Pio°f of , to maintain the defence of a purchase for value {JJo^J.yu'ii- without notice, to prove payment of the niortga,L;e uecc'ssiu V. m if,. til i^: ^ 222 253. PO^YETi OF SALE. Section money or purchase money, or any part thereof. K. S. 0. 1877, e. 95, s. 9. Frauds on (^ales and Mortgages. S. K vintoor^' 37. If ftny seller or mortgagor of land, or of foi°"raiuiu- any chattels real or personal, or choses in action lent cou- . _ ceaijne^nt of conveyed or assigned to a purchaser or mortgagee, "nfiSi-' o^ tl^6 solicitor or agent of any such seller or mort- AcTs. 22'2r gagor, conceals any settlement, deed, will or other V. e. 35 8. ^f •v''"'l)^" instrument material to the title, or any incumbrance. '24 \ , c. 38, 'J from the purchaser or mortgagee, or falsifies any pedigree upon which the titledependsormay depend, in order to induce him to accept the title offered or produced to him with intent in any of such cases to defraud, he shall, in addition to any criminal liabi- lity he may thereby incur, be liable to an action for damages at the suit of the purchaser or mort- gagee, or those claiming under the purchaser or mortgagee, for any loss sustained by them or either or any of them, in consecpience of the settlement. deed, will or other instrument or incumbrance so concealed, or of any claim made by any person under such pedigree, but whose right was concealed by the falsification of such pedigree; and in esti- mating 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. R. 8. O. 1877, c. 98, s. 18. 1 APPESDIX A. 228 Section 254. [254.;; R. S. 0. 1887, CAP. 102. AN ACT RESPECTING MORTGAGES OF REAL ESTATE. Inteupretation, s. 1. Obligation to transfbr mort- gage, B. 2. Inspection of Title Deeds, s. 3. Application of insurance MONEY, e. 4. Impliko Covenants, ss. 5-7. Release of equity of redemp- tion, ss. 8-10. Proof of mortgage account IN foreclosure proceed- ings, s. 11. ExEcuToits, etc., of mortga- gees MAY ASSIGN, ETC., LEGAL estate IN CERTAIN CASES, s. 12. Discharge of mortgage may be made at any time, s. 13. Effect ov advance on joint account, s. 14. Receipts of mortgagee or SURVIVOR of two OR MORE mortgagees to be effect- ual discharges, 8. 15. Right of mortgagee to dis- train LIMITED, SS. 16-17. Power of sale and incid- ental powers to be im- plied, ss. 18-29. Taxation of costs, ss. 28, 31. Restriction as to proceed- ings ON mortgages, s. 30. Payment in terms of notice to be accepted, s. 31. Defence of purchase for VALUE without NOTICE, s. 32. TTER MAJESTY by and with the advice and ^ consent of the Le^nshitive Assembly of the Province of Ontario enacts as follows : — 1. Where the words following occur in this Act, {,\\'fj/;''e- they shall be construed in the manner hereinafter Jiientioned, unless a contrary intention appears — 1. "Property" includes real and personal pro- ;;^j^,"f perty, and any debt and any thing in action, and any other right or interest. iiiMli Is ": 224 Section 2-i. ' Land." " Convey- ance." " Mort- gage." POWER OF SALE. 2. "Land" includes tenements and heredita- ments, corporeal or incorporeal ; and houses and other buildings; also an undivided share in land. 8. ' ' Conveyance ' ' includes assignment, appoint- ment, lease, settlement, and other assurance and covenant to surrender, made by deed, on a sale, mortgage, demise or settlement of any property oi- on any other dealing with or for any property ; and "convey" has a meaning corresponding with that of conveyance. 4. " Mortgage " includes any charge on any pro- perty for securing money or money's worth; and " mortgage money " means money or money's worth secured by a mortgage ; and "mortgagor" includes any person from time to time deriving title under the original mortgagor, or entitled to redeem a mortgage, according to his estate, interest or right hi the mortgaged property; and "mortgagee" in- cludes any person from time to time deriving title under the oriijfinal mortiifaiifee. 'o' "O"?-.* ■' Inpuni- brance." ry. "Incumbrance" includes a mortgage in fee, or for a less estate, and a trust for securhig money, and a lien, and a charge of a portion, annuity n the*"''" iiiort<;a^'e del)t and eonvey the niort.t^aj^ed property to any third person, as the mort;;a^;or directs; and the mort,i>a;^ee shall, by virtue of this Act l)e bound to assij^n and eonvey accordingly. 2. This section does not api)ly in the case of a iiiort^a^ee l)ein,i'' or havinj^' been in possession. 3. This section shall have efl'ect notwithstand- iii.H any stipulation to the contrary. 41) \. c. 20, s. 7. ^This section was tiikoii finm Inip. ('niivoyiviicin^' Act, issl, n. lo. us to which see Teoviiii v. Smith, 20 Cli. D. 7'Jl ; Ahlcrson v. KU,'cy, 'il) Ch. O. ■ >12: Kiiinaird v. Trollope, iV.tCh. J), tlld (IssHi. 3- (1) A mort^a^'or, as lon^- as his right to redeem subsists, shall, by virtue of this Act, be entitled from time to time, at reasonable times, on his recpiest, and at his own cost, and on payment of the mort^"aj^ee'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. H.P.8. 15 Powi'V tnr to iiisju'ct title (Icpds. Iiiip. Act sue. Hi. W\ : : ^'H ' * , ■ f'-i'iy 1 1 '^ >ll>' 1. ■ " : i'. I' i ' ?i! ■ (,' , ^ !?■ r i i^ i 1 220 POWER OF SALE. Section (^2) This sectioii applies only to mortgages made ' after the 1st day of July, 1886, and shall have effect notwithstanding any stipulation to the contrary. 49 V. c. 20, s. 8. money."'^ 4. (1) AH uiouey payable on an insurance to j.ii. Act, ^^^ iiiortgjigor shall, if the mortgagee so requires, be applied by the mortgagor in making good the loss or damage in respect of which the money is received. (2) Without prejudice to any obligation to tlie contrary imposed by law or by special contract, a mortgagee may require that all money received on an insurance be applied in or towards the discharge of the money due under his mortgage. 49 \, c. 20, s. 9. [As to application of insurance money, see Corliam v. Kingston, 17 O. R. 482 : Edmonds v. Hamilton Provident. li> 0. R. (177.J C'ovonants to lio ;illll n^ 5. (1) There shall, in the several cases in this I'.l'ip' Act. section mentioned, be deemed to be included, and there sliall in those several cases by virtue of this Act be implied, covenants to the efl'ect in this sec- tion 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 conveytnl by him, \vith tlu^ person, if one, to whom the con- veyance is made, or with the persons jointly, if iiiort^ than one, to whom tlie conveyance is made as joint tenants, or with eacli of the persons, if more thin one, to whom the conveyance is made as tenants in connnon, that is to sav : — APPENDIX A. 227 (a) In a conveyance by way of mortgage, the ^'*"* following covenants bv the person who„ r~ " .X Oil iiioi-t- conveys, and is expressed to convey as f,"5\^o,ic7ai beneficial owner (namely) : For payment of the mortgage money and interest, and observance in other respects of the proviso in the mortgage ; Good tife ; liight to convey ; That, on default, the mortgagee shall have quiet possession of the land ; Free from all incmnbrances ; That the mortgagor will execute such further assurances of the said lands as may be requisite ; and That the mort<>a<>or has done no act to incum- "n'^'-n ber the land mortgaged ; According to the tenor and effect of the seve- ral and respective forms of covenants for the said purposes set forth in Schedule B to The Act rcapccting Short Forms o/c.?07. * ' Murt(j(i(jes. (h) In a conveyance by way of mortgage of |,^;j, '.'jf/'- leasehold property, the following further Ki'mn covenant by the person who conveys, and is expressed to convey, as beneficial owner (uamely) : cial uwiiur. 7TTT V M IS r ) 228 Section 255. Validity of lease. l'ii\ ni'iit of i-ciit ami liei'tonn- iiiiec iif uovcnnijts. POWER OF SALE. That the lease or grant creating the term or estate for which the hind is held is, at the time of conveyance, a good, valid, and effectual lease or grant of the land con- veyed, and is in full force, nnforfeited, and unsurrendered, and in nowise hecome void, or voidahle, and that all the rents reserved by, and all tlie 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 he paid, observed, and jut- formed, have Ik'CU paid, ol)served and })ei- Ibrmed, up to the time of conveyance : And also, that the person so conveynig, or tiic persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, \);\\ , observe, and perform, or cause to l)e paid. observed, and performed, all the rent^ reserved by, and all the covenants, condi- tions, and agreements, contained in the lease or grant, and on the part of tiif 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, and tliosc deriving title under him, indenmiticd against all accidents, proceedings, costs, charges, damages, claims, and demands, if any, to be incurred or sustained by him or them, by reason of the non-payment nf APPKS'DIX A. 220 such rent, or the non-observtmce or non- *1?°*\?" ' 2SS-2o5a, performance of such covenants, conditions ~ and af^reements, or any of them: -10 V. c. 20, s. 13, (1 c. (J.) •2ooa. 6. In fi mortgage, where more persons than one are expressed to convey as mortgagors, or to join as covenantors, the imphed covenants on their part shall he deemed to be joint and several covenants by them ; and where there are more mortgagees than one, the implied covenant with them shall be deemed to be a covenant with them jointly, unless the amount secured is expressed to be secured to them in shares or distinct sums ; in which latter case the implied covenant with them shall be deemed to be a covenant with each severally in respect of the share or distinct sum secured to him. 4 may affuctea. have under the liegistry Laws. 11. 8. 0. 1877, c. 91), s. 3; C. 8. U. C. c. 87, s. 3; 14 cV: 15 V. c. IV s. 3; 24 Y. c. 41, s. G.J inproceod- H. Oil aiiv proccediiig for foreclosure hy or toi intjs for T . ■ . . ,. *• , foreclosure i-pt[enipti()n agaiiist all assignee ot a mortgagee, the etc., state L f^ '^ " '^ pii'o""' statement of the mortgage account, under the oatli may'llo of such assignee, shall he sutlicient pyhiui f'lic/r proved , , . j*nm(./aa<; evidence of the state of such account, and no alli- bystate- oatilof" davit or oath shall he re(iuired from the mortgagee niortHage. or aiiy intermediate assignee denying any payment to such mortgagee or intermediate assignee, unless the mortgagor or his assignee or the party proceed- ing to redeem denies by oath or athdavit the coi- APPESniX A. 231 rectiiess of such statement of rtcc-ouut. li. S. (). -t®"*^""? 2SSa-205D. 1H77, c. W, s. 4 ; ;C. S. U. C. e. Hi, s. 4 ; 14 cV' LI V. c. 4o, S.4.; 12. Wliere a person entitled to anv freehold i;xecutois liind hy way of niort^a^'e has de[)arted this life, andf;"!;^;^","^!^^?; iiis executor or administrator has become entitled to th(> money secured by the mortj^age, or has assented to a becjuest thereof, or has assigned tlie mortgage debt, such executor or administrator, ii tbi' mortgage money was paid to the testator or intestate in his lifetime, or on payment of the [)rin- cipal money and interest due on the mortgage, or on receipt of the consideration money for the assignment, nuiy convey, assign, release or dis- charge the mortgage debt and the legal estate in the land ; and such executor or administrator shall liave the same power as to any portion of tlu^ lands on ))aym(>nt of some part of the mortgage deljt, or of any arrangement foi" exonerating the estate, or any part of tlu' mortgage lands without payment of money; and such conveyance, assignment, release or discharge shall be as effectual as if tlie same had been madt^ by the person having the legal estate, li. S. (). IS77, c. !M), s. o. See also llev. Stat. c. 110, s. 1() ; >V> V. c. 10, s. 1. •2.55b. 13. Kvery certificate of pavment or discharge c'^^tificato of a mortgage or of the conditions therein, or of ['.X-'vaUd the lands or of any part of the same, or of any parteyorume of the money, by the mortgagee, or his assignee, ii| 232 POWER OF SALK. ""Sib" ^^^ heirs, executors, aflininisfcrators, or assigns, or anyone of them, at whatsoever time given, and whether before or after the time hmitecl by tlie mortgage for payment or performance, shall, if in conformity with the liegistry Act, be valid, to all intents and purposes whatsoever. R. S. 0. 1H77, c. 99, s. (). See alsoKev. Stat. c. 110, s. 17 ; c. 114» ss. 09, 72; 31 V. c. 20, s. 02. [As to payment of principal after default, see 51 V. c. lo, s. 2] . Effect of advance on joint 14. (1) Where in a mortgage or an obligati(^n Account, for payment of money, or a transfer of mortgage or Imp Act, »,,,.. , r 1 *J-^^5v. c. of such obligation, the sum, or any part of the sum, advanced or owing is expressed to be ad- vanced by or owing to more persons than one out of money, or as money belonging to them on a joint account, or where a mortgage or such an obligation, or such a transfer is made to more persons than one, jointly, and not in shares — the mortgage money, or other money or money's worth, for the time being due to those persons on the mortgage or obligation, sh.ill be deemed to be and remain money or money's worth belonging to those persons on a joint account, as between them and the mortgagor or obligor ; and the receipt in writing of the survivors or last survivor of them, or of the pers'onal repre- sentatives of the last survivor, shall be :i complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a severance of the joint account. APPKSDIX A. 283 (2) This section applies only if and as far as a **j5SJ° contrary intention is not expressed in the niort;,'a*^e, or obligation, or transfer, and shall have effect snb- ject to the terms of the niort<,'age, or obli^nition, or transfer, and to the provisions therein contained. (8) This section applies only to a niort^^age, or ol)li^'ation, or transfer made after the 1st day of July, 188G. 49 V. e. 20, s. lo. 15, The bona fide payment of any nioney to, Jf"„°«5}^gt^,' and the receipt thereof by any person to whom theeiTe'ctuar same is payable upon any express or nnplied trust, or for any limited purpose, and such payment to and receipt by the survivor or survivors of two or more mortga<^ees or holders, or the executors or administrators of such survivor, or their or his assigns, shall effectually discharge the person pay- lug the same from seeing to the application, or l)eing answerable for the misapplication thereof, unless the contrary is expressly declared by the instrument creating the trust or security. 11. 8. (). ISTT, c. 99, s. 7. See also liev. Stat. c. 110, s. 8 ; C. S. U. C. c. 90, s. 9; 12 V. c. 71, s. 10.', t.i (listriiiii limited lis to «(>l)lls. 16. The right of a mortgagee to distrain for |;|f;J;^j^;;f^,,,,, interest in arrear upon a mortgage, shall be limited to the goods and chattels of the mortgagor, and as to such goods and chattels, to such only as are not exempt from seizure under execution. This section shall not apply to mortgages existing on the 25tli day of March, 1SS(). 49 V. c. 29, s. 8. it Mil' 234 V'lWi.n OF sAi.i:. Section 20Bb. Mortya- i>r (listrcHs liinitont, before such hiwftil sale, claim the benelit of the said restriction, and in case such notice is so ,L;iven, the distrainor shall reliiKpiish to the ollicer or assi;;nee the ^oods distrained, upon receivin;^" one year's arrears of such niterest or rent, and Ins reasonable costs of distress, or if such arrears and costs shall not be paid or tendei'ed, he shall sell only so much of the j^oods distrained as shall be neces- sary to satisfv one vear's arrears of such interest or rent, and the reasonable costs of distress and sale, and shall thereupon reliiujuish any residue of goods, and pay any residue of moneys. proceeds of goods so distrained, to the said officer or assignee. i t r-ii; APPHSDIX A. 285 (•2) Any otliccr cxccutiiij^' a writ of cxociition, oi' ^^^^^ an assi^noc wlio sliall pay any money to relieve „,,.,„. L>(»()(ls from distress nnder the next pr('(*e('din;L;o7rmc«lr'' siih-section, shall he entitled to renni)Urse Inmselr tliei'etbr, out ol' the proceeds of the sale of such ,i;'oods. (.■}) (loods distrained for arrears of interest oi-"^!;,",'^*' '^f rent, as afoi'esaid, shall not i)e sold e\ce[)t aftei' such puhlic notice as is now re(piired to he ;^iven h\ a landlord who sells ^'oods distrained for rent. ."•)(» \'. c. 7, ss. :}()-;iS. r.\HT Tr. [liOiu) CiiANWoitTn's Act, '2'A'2,i V. c. 115.] 18. Where any principal money is secured or (liar^'ed hy deed executed at'tei' the 11th day of Mai'cli, ISTD, on anv hereditaments of anv tenure, !'"^^''''\, ■ ■ • iiiciileut to (iron any interest thei'ein, the jierson to whom the ""'""**^''''*- money shall, for the time l)ein,u', l)e payahle, his • •\(M iitoi's, administrators and assi^^ns, shall, at any time aftei- the ex[)irati()n of six* months from the time when the pi'incipal money shall have heconu' l)ayal)le, accordin.^' to the terms of the deed, or utter any interest on the principal money shall ii!i\e heen in arrear foi" six months, or after any iiission to pay any premium or any insm^ance which, by the terms of the deed, ou,L;iit to hv paid 1' the person entitled to the property sul)ject to the char^^e, liave the following powers, to the same * "Four"' substituted by .51 V. c. 15, s. 3. As to Power of Sale, s?e //;/(/. s. 4.' 236 POWER OF SALE. ^m!*° extent (but no more) as if they had been in ~ terms conferred by the person creating the charge, namely : 1st. A power to sell, or concur with any other person in selling, the whole or any part of the property by public auction or private contract, subject to any reasonable conditions he may think fit to make, and to rescind or vary contracts for sale, or buy in and resell the property, from time to time, in like manner. 2nd. A power to insure, and keep insured, from loss or damage by fire, the whole or any part of the property (whether aftixed to the freehold or not) which is in its nature insurable, and to fidd the premiums paid for such insurance to the principal money secured at the same rate of interest. 42 V. s. 20, s. 1. uceeipta 19- Rcccipts for purchase money given by the money pcrsou or persous exercising the power of sale by rSmrilcs. the preceding section conferred, shall be suHicicnt discharges to the purchaser, who shall not be bound to see to the application of such purchase money. 42 V. c. 20, s. 2. Notice l)i'foro sale. 20- (1) ^o «i^le day ot 18 . 42 V. c. 20, s. 5. 23- 'i'he notice of sale of lands may be registered in tile registry otlice of the registry division in which the lands are situate, in the same manner as any other instrument affecting the land, and such regis tration shall have the same effect, and the duties of the registrar in respect of the same shall be as in the case of any other registered instrument, and [• fll V. c. 1;'), B. i\, subatitutes two nioiitliH' notice for three ; ami as to principal, substitutes four niontlis' default for si.x.j AFI'F.SDIX A. 231) the fee to be paid such re<,nstrar for ref,astering the ^^^gj**" same shall be lifty cents. 42 V. c. 20, s, (>. 24- (1) The aflidavit for the purpose of I't'gis-jf,!?'",!;'^/^*. tcriug tlie notice shall be made by the person who "■*''"" served the ScUiie, and shall prove the time, place, aud maimer of such service, and that the copy delivered to the registrar is a true copy of the notice served. (2) A copy of such registered notice and atU-J!",^,"'"^/' davit, certilied under the hand and seal of otlice ()f IioUietoiw 1 • iii'ii 1 -T cvidc'iK'O. tlie registrar, shall m all cases be received as /irntia iKcie evidence of the facts therein stated. 42 V. C. 20, s. 7. 25- Tlie nion(>y arising by a sale effected asi^j[;i;\\^.''- aforesaid shall be applied by the ))ers()n recHMvinglnonuy.'''' the saiiu' as follows : lirst, in payment of all the expenses incident to the sale or incurred in any attempted sale ; secondly, in discharge of all interest and costs then due in respect of the charge in conse((Uence whereof the sale was made; and thirdly, in discharge of all the principal moneys then due in respect of such cliarge; and the residue of such money shall paid to the sid)se(|uent encum- brancers according to tlieir priorities, and the balance to the person entitled to the property sub- ject to the charge, bis heirs, executors, adminis- trators or assigns, as the case may be. 42 A', c. 20, s. 8. 26- The person exercising the i)()wer of sale <^''"'ve.v- hereby conferred shall have power by deed to eon- ''""''*'"''•''■ vey or assign to and vest in the purchaser the]i;,\'"'i;;i5j WT ■f-f rrl. 240 POWER OF SALE. ^^w!^ property sold, for all the estate and interest therein, which the person who created the char<^e had power to dispose of. 42 V. c. 20, s. \). 27- -^t any time after the power of sale herein Owner of . • i i i ';|^'j^,'];j'^.'"''>conterred shall have hecome exercisahle, the person titlo-ileods mid cuii- vcyaiKM! of loiial listiite I entitled to exercise the same shall he entitled t( demand and recover, from the person entitled to the property sul)ject to the charge, all tlie deeds and documents in liis possession or power relatini; to the same proiJi'rty, or to the title thereto, which 1 le won Id have Ix'cn entitled to demand and recover if the same pr()})erty had heen conveycMl. appointed, sun'endered, or assigned to and were then vested in liim for all tiie estate and interest svlii(di tlie person ( rcating the charge had powci' to dis])()se of; and whcri' the legal estate shall l)r outstanding in a trustee, the person entitled to a (dnirgc created by a [)crsoii ecjuitahly entitled, or any pundiaser from sucdi person, shall he entitled to call for a convevance of the li'gal estate to the same extent its the person creating the < liarge could have called for such a conveyance if the charge had not heen made, 42 \'. c. 20, s. 10. Taxation 28- I'hc uiortgagec's costs nniy, without an " '"""'' order, he taxed hy one of the taxing oHicers or hy the local master, at the instance of any party interested. 42 V. c. 20, s. 11. I'lovisions 29. So much of Tart II. of this Act as pro- as tusuie, — w^ ». al^piy'in'" vides for a power to sell shall not apply in the case cases!" of a deed which contains a power of sale; and so Al'PKSniX A. •241 much of this Act as provides a power to insure gSeS?" sliall not apply in the case of a deed which con- ■ tains a power to insure, nor shall any of the pro- visions of Part II. of this Act apply to any deed which contains a declaration tliat Part II. of this Act is not to apply thereto. 42 V. c. 20, s. 12. 2^)7. Part III. /"' rSee suiini piiragraph-sections 212, 2i:i, iuid ('hiipter XII. si III.] 30. (I) Ii^ order to prevent the making of iiiuiecessary and vexatious costs in respect to ' Mortgages, it is herehy enacted that, where, pm*- siiant to any condition or proviso contained in a 'Mortgage, there has been made or given a demand ())• notice, either recpiiring payment of the moneys, or a)iy part thereof, secured by such mortgage, or declaring an intention to proceed under and exer- cise the power of sale contained in such mortgage, no further proceedings and no action eitlun* to enforce such mortgage, or with respect to any ( lausp, covenant, or provision therein contained, or the la ids or any part thereof thereby mortgaged shall, until after the lapse of the time at or af;er which, according to such demand or notice, pay- ment of the moneys is to be made, or the power of s(de is to be exercised or proceeded under, be com- menced or taken, unless and until an order per- mitting the same shall first be had and obtained, eitlier from the Judge of a County Court or from a Judge of the High Court. HP s. — 16 W lllMl .it!- lIUIIIll of |IM\ lllL'llt iiiihIc. (ir notice of iiiloution to t^xcrcise 1 lower of sale L;lveii no fiirtlicr proceert- iiifjs to 1)0 tiikou until ('X|iiriition of time niuned ill notice or ileiniuid, W itllOilt oi'.ler of a i'Mi e. 242 POWER OF SALE. :11 section (2) Such order may be obtained ex parte, but 7^^^^^^-;;^ only upon such affidavits and proof as will satisfy orlV.'r'may the Judgc that it is reasonable and equitable that I,.. planted, ^j^^ proposcd action or proceeding should be allowed to be taken and proceeded with. Title of amdavit. (3) Such affidavit or order may be entitled as follows : — "In the matter of a mortgage purport- ing to be made between {descrihimj the pdiiies thereto as in the mortgage) and bearing date on the day of Thisaec- (4) Tliis sectiou shall not apply to proceedings tion not to^'' i r j i n foffocMd-t^ stay waste or other mjury to the mortgaged 'v^tl"""* premises, and the costs of any application there- under shall be in the discretion of the judge. V. c. 16, s. 2. ( Payiuenl to lie iicci'pted if iiiadt) ill ti'llllS of notice. Th Nation (if < lIKts. 31. Where such demand or notice requirts ))ayment of all moneys secured to be paid by of under a mortgage, the party making such demand or giving such notice shall accept and receive pay- ment of the same, if made as required by the terms of such notice or demand ; and if there lu* any dispute as to the costs payable by the person by or on whose behalf such payment is either 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 bv the clerk of a County Court, or by a local master, and there- upon and in such case, if within ten days after saiiica gages made subsequent to the first day of July, " 1888. tiou. see- (2) Where default has been made in the pay- i'«v"i''n.t ^ ' * "^ of ). l)een any express af^reenient with resjiect eitlier to such notice or to interest to be paid inheu tliereof, such agreement sliall l)e binding and have the same effect as if this Act had not been passed ; provided, moreover, that this Act shall not be held as ap})ly- ing to any default in the payment of principal money that may have heconie due or payable oiilv by reason of some default made in the payment oi interest money secured or payable l)y or under aii\ such mortgage*, or l)y reason of some default made in the payment of any instalment of prin- cipal money, or any i)ortion of any instalment of principal money secured or payal)le by or under any such mortgage, but shall be held as aj)plying to any such instalment in respect of which default has been made as aforesaid. yi'iKos" (3) '"^*^y rule, question or matter of law m "'.'jlnvTs"! equity affecting or arising out of any default iu the atfectod. payment of money secured by any mortgage nuule either heretofore or prior to the first day of Jnl\ next after the passing of this Act, shall in all respects, and for all purposes be adjudged and determined as if the provisions of this section had not been enacted. Hev.stat, 3. Hectlou 18 of The Act resjtecting Morf(j(t(/i--< amVSii:! of Meal Estate, being Chapter 102 of the lievised Statutes of Ontario, 1887, is hereby amended by substituting the word "four" for the word "six" Al'l'ESUlX A. 2\n in tlie sixth lino thereof; {iiul section 20 of the said section 25 J. Act is herehy amended by substituting' for the word "three " in the second hue thereof, tlie word "two." 4. Whenever a niort<]fa<'e made in i)ursuance of ''"" ' -f Till' Act respectiHf/ Short Forin.s of Mortf/at/es, liein^' Chapter 107 of the Revised Statutes of IHH\ of sab the foi •ontanis a pov No. 14, in cohmni 1 of Schedule B, to the said Act tht' mortgagee, his heirs, executors, administrators (ir assigns may, in exercising the said power, in lieu of taking the proceedings provided for by the said form Xo. 14, column 2, take proceedings under and have the benefit of the provisions of part two of TJic Act reHpectinij Mortf/df/cs of Heal E.state, (•lia])ter 102 of the lievised Statutes of Ontario, issT, except that sucli power shall n(jt l)e exer- ( isable until after at least four months' default and at least two mouths' notice, or such longer periods ;is may by the power contained in such mortgage l)t' tixed therefor, and the said part two shall apply to a sale nuide under such power. 5. Xo sale heretofore made shall hv declared t'l be invalid on the ground, or by reason only of the same having ])een made in pursuance of a power of sale contained in a mortgage wliere sucli power has bt't'U exercised by an assignee of such mortgage instead of the original mortgagee unh'ss within two years after the making of any such sale, proceedings have l)een, or shall l)e taken to declare the same to l)e invalid or irregular; but nothing herein contained shall be deemed or construed to coulirm anv such Time for (jiiostioii- iiit; Siiles liinit'Ml. m 'A 24() POWKU OF SAI.i:. M?269' ^»lt' ^^'lii<'li for any other reason or any otlier^'roiiiui nii«,Mit be set aside, or declared irregular or invalid ; nor shall anything herein contained affect any jjio- ceeding, suit, or matter, either now pending or here- tofore adjudged or determined or which may he brought within three months after the passing of this Act. [259. 53 VIC. CAP. 27. K'- :.! V <•. 1 H. 1 nine I'd. ii'll iiiKH nil Kiilc in llliilt^'H: .f ■s. AN ACT TO AMEND THE LAW RESPECTING POWKIIS OF SALE L\ MOUTGAdES. XJEH :\rAJESTY, by and with the advice aii.l consent of jthe Legislative Assembly of the Province of Ontario, enacts as follows : — 1. Section t of 'I'/if Morff/df/c Aiiicudniettt Ait ' ISSS, is amended by adding thereto the following sub-sections. (2) Whenever ;i mortgage })urp()rting to Ix' made in pursuance of TJic Act respect iiKj Sltoit Forms (>/ Mort(j"n nr Kov. Stat. c. l(i'2. assigns, may take proceedings to sell under and sell and have the benetit of the ])rovisions of part two of TJic Act respect iiKi MorttiiKjea of Heal Estate, as fully and effectually as if the mortgage had not contained a power of sale. (3) The preceding sub-section shall be held to apply to all mortgages whether heretofore or hereafter made. Al'I'i:SI>l.\ A. •_>47 ;2()0.] K. S. O. 1HH7, CAP. 107. Section 260. (See .sui>r(i Chap. IV.,«'< /ninsini.) AN ACT l{i:SPECTIN(i SHOUT FORMS OF MOUTCIAGES- LTKH MAJESTY, by and with tlie advice and consent of the Tiegishitive Assembly of the Province of Ontario, enacts as follows : — 1. Where the words foUowin*? occur in this Act '!'i«-n'ieta- ov in the Schedules thereto, they shall be construed in the manner hereinafter mentioned, unless a contrary intention appears: 1. "Lands" sliall extend to all freehold tene- Lamw iiients and hereditaments, whether corporeal oi' incorporeal, or any undivided part or share therein res})ectively ; 2. "Party" shall mean and iiu-lnde any l)()dy "I'mty." politic or corjxu'ate as well as an individual. !{. S.O. 1S77, c. KM, s. 1. 2. WluM'e a mort'^as'e of real proiierty in^vhoiv Ontario, made according to tlie form set forth in';,',',!",','," Schedule A, annexed to this Act, or anv other snchKr.'"'/,'," mortgage expressed to be made m pursuance oi this"";'tK"K'; Act, or referring thereto, contains any ot'tlie foi'nis.^'i'jf'X';'''' of words contained in column one of Scliedule B, to t'liu.rM'i" this Act, and distinguished l)V any number therein, '""ertoii. such mortgage shall be taken to have the same clfect, and be construed as if it contained the form •21.S I'OWKU OF .S'.l /,/•;. 8«ct*oo of wurds c'ontiiiiR'd in column two of said Schedule 300. B, and distin^niislicd by the same numher as is annexed to the form of words used in such mort- j^a^'e; but it shall not be necessary in any siicli mortg{i<,^e to insert any such number. K. S. (). 1H77, c. 104, s. ± u.TxTki'Z 3. Any such mortga^^e or part of such mortf^a^'c unlul tiii- which fails to take effect by virtue of this Act, shall tMi vnii.i nevertheless be as effectual to bind the parties thereto, as if this Act had not been nnide. li.S.O. 1877, c. 104, s. 3. M(>rtua>.'t to ini'liuli' all lidii-ii's etc. iiiid the rovn- Kion iiiiilal! tl]«' t'KtiltC, (if till' Ki'Hiitor 4. Kvery such niort^^a«,'e, iniless an exception is specially made therein, shall be held and construed to include all houses, out-houses, edilices, barns, stables, yards, "gardens, orchards, commons, trees, woods, under-woods, mounds, fences, hedges, ditches, ways, waters, water-courses, lights, liber- ties, privile<,'es, easements, profits, connnodities. emoluments, hereditaments and appurtenances whatsoever, to the lands therein comprised belonj^- ing, or in anywise appertaining, or with the same demised, held, used, occupied and enjoyed, or taken or known as part or parcel thereof, and if the same purports to convey an estate in fee, also the rever- sion and reversions, remainder and remainders, yearly and other rents, issues and profits of the same lands, and of every part and parcel thereof ; and all the estate, right, title, interest, inheritance use, trust, property, i)rotit, possession, claim and demand whatsoever of the grantor in, to, out of, or upon the same lands and every part and parcel Al'l'i:SI>l\ A. -IW) Section 260 tht'ioof, with thriniiul cvt'i'v of their appiirteiismccs suhjcct always to the n'scivations, limitations, j)rovis()R and conditions contained in the grant of such lands from the Crown. K. S.O. 1S77, c. lot, s. 1. ,As to s. i, soe Wiiifii^ld v. Fowlio, (1888) 11 (). R. 102.] 5. The schednles hereto, and the directions and |;;;!'«{«';'"* forms therein contained, shall be deemed parts ofof'.ut'"' tills Act. U. S. (). 1877, c. 104, s. 0. SCHKDlTLi: A. (Section .V.) Form of Moutoage. This Indentnre, make the day of one thousand ei^^ht hundred and , in pursuance of T/ic Act n'sjK'ct'nK) Short Fonns of Mortt/agen, between (hrn' insirt the ntinirs of /larties and rcrif/i/.s, if (i)ifj), witnesseth, that in consideration of of lawful money of Canada, now paid by the said (mort;,^a<4ee or mort- <4a^ees) to the said (mortj^a^'or or mortgagors), the receipt whereof is hereby acknowledged, the said mortgagor or mortgagors) doth (or do) grant and mortgage unto the said mortgagee or mortgagees, Ills i^her or their) heirs, executors, administrators and assigns for e\er, all (parcch). (Here insert prori.sos, corcntnits or other pro- risio/is). 250 POWEli OF SALE. **?»o° In witness whereof the said parties hereto have hereunto set their hands and seals. H. S. O. IH77, e. 104, Schedule A. SCHEDULE 13. (Section >^.) DIIIEC'TIONS AS TO THK FOItMS IN THIS SC HKDULK. i. Parties who use any of tlu' forms in tlic first coluniii of this Schedule may substitute tor tluMVords " Mort<^a^()r" or " Mort^^a^^^ors,'" or "^rortga.i^ee" or " Mort,L;ii;^ees," any nanu' oi- names ; and in every sucli case corresponding substitutions shall i)c taken to be made in tbc correspondinjjf forms in the second column. 2. Such parties may substitute the feminine ^^ender for tlie masculine, or the plural number for the sin^'ular, in any of the forms in the first colmnn of tliis Sclu;dule; and corresponding" chcin*,'0s shall be taken to be made in the corres[)onding forms in tlu» second colunm. :{. Such parties may introduce into, or annex to any of the forms in the first column, any express exceptions from or other ex[)ress ({ualilications thereof respectively ; and tlie like exceptions or (jualitications shall be taken to be made from or in the corresponding' forms in the second colunm. APPKSDIX A. •251 2(){)a. FOHMS OF COVENANTS, ETC. Section aeoa. COLUMN ONK. 1. And the said (A.B.) wife of the said iiiort^m','or here- by bars her (lower in the said hinds. 2. Provided : Tliis iiiort^a^^e t(t be void • 111 payment (if (ft III I) II lit 'if !> r i lie i jKi I uiDiir//) of law- t'lil money of Canada, with interest at ( rdfc of iiiti'i'csf) |)('r cent, as fol- lows : (frriii.s of />ai/fiicnt of /iflnciiiit/ a IK J COLUMN TWO. 1. Ami the said (A.H.) wife of the said inort{,'agor, for and in consideration of the sum of of lawful money of Canada, to her in hand paid by, the said mortga«,'ee, at, or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted and released, and by these presents doth grant and release unto the said mortgage*!, his heirs, executors, a(hnin- istrators and assigns, all her dower and right and title, which, in the event of her surviving her said husband, she might or would have to dower, in, to, or out of the lands and premises hereby conveyeil or intended so to be. 2. Provided always, and these presents are upon this express eondition that if the said mortgagor, his heirs, executors, admin- istrators or assigns, or any of them, do and shall well and truly pay or cause to hv p.iiil unto the said mortgagee, his executors, ad- ministrators or assigns, the just and full sum of {uitinidit III' firiiififxil iiudiiii) of lawful money of Canada, with interest thereon, at tlic rati' of [nitr nj inti-ri'nt] per cent, per annum, on the days find times, and in man- ner following —that is to say — (ti'rnis nf fnii/- iih'iit III /iriiiiiinil iiHil iiitt'rcst), witliout any deduction, defalcation or abatement «)Ut of the same for or in I'espect of any taxes, rates, levies, charges, rents, assessments, statute labour, or other impositions whatso- ever already rated, charged, assessed or if J 5,., J; . i •2ry2 I'oU i:ii OF SALE. 2Sa2Mb '"^<^''^«0 aildiiupost^^'K or liereafttT to be rated, cliaigt'd. raxes iilld i)(.r- ''^■''esstMl or imposed by authority of Puilia 1, ...... ...w .. ..r'"*'"*' "'■ of t''^' I^t3«i«latin-e, or otlierwise. 1 ( ' I III tl M ( I' •' I 1 , . , , . lio\\>.ot'Vfr, on tlie said lands and tenements, statute la hour, hemlitaments and in-emises, with the ap- purtenances, or on the said mort^'agee, his heirs, executors, administrators or assigns, in respect of the said premises, or of tli) said money or interest, or any other maltt r or thiug I'ebiting to these presents, and until such default as aforesaid shall and will well and truly pay, do and perform, or cause or pro<'uro to be paid done and performed, all mattt-rs and things in this proviso herein before set forth, then these presents and everything in tlie same contained shall be absolutely null and void. :{. Tlic said niort^^a^or cov- enants with the s;ii(l mort^^a^'ee. 4. 'I'hat thr nii)rt^a,!4()r will pay the inort- '•af^e money and interest and oh- ser\(' the al)ove proviso. 'i\. And the said mortgagor doth hereby, for himself his heirs, executors and admin- istrators, covenant, promise and agree to and witli the said mortgagee, his lieirs, executors, administrators ami assigns, in manner following, that is to say : 1. That the said mortgagor, his heirs, executors, administrators or some or one oi them shiiU and will wi'll and truly pay or cause to be paid unto the said mortgagee, his heirs, executors, administrators or as signs, the said sum of mont>y in the above proviso mentioned, with interest for the same as aforesaid, at the days and times, and m the manner above linuted for payment thereof, and shall and will in everythingwell, faithfully and truly tlo, observe, perform, fultil and luM'p all and singular the prnvi sions, agreements and stipulations in the AI'Pi:S'I)IX A. 25;i COLUMN ONK. COIJMX TWO. said nbovo pvox . o, particularly sot t'ortli, ticcordinf,' to tiie true intent and meaning,' of tlioso presents, and of tho said above l>roviso. i). Thilt till' '"'• And also, tiiat tlic said niort^'aj>()r, at lil()rt""il""or lias a ^^^^ time of the sealing and delivery hereof, ^ i-,1 ,. is, and stands solely, riL'htfuUv and lawfuUv \S(H)d title in tec , , ,,.,",,. Section 260b. simple t<) the sitifl lands. seised of a ^?ood, sure, perfect, absolute and indefeasible estate of inheritance, in fee simple, of ami in the lands, tenements, hereditaments and all and sin<,'ular oIIkt the premises hereinbefore described, with their and every of their ai)purlenances, and of, and in every part and parcel thereof, without any manner of trusts, reservations, limita- talions, piovi oes or conditions, except those contained in the origimvl i,'rant thereof from the Crown, or any other matter or thin.i,' to alter, c!uir;^'e, chan<,'e, incumber or defeat the same. C). And tliat <»■ And also, that the said mortgni,'or now he Iris the ri'dlt '"^'''' '" ^''"'^''"^ L,'()od rif.,dit, full power and .1 lawful and absolute authority to convev the to convev the ., , , , ,., ■ said lands, tenements, liereditaments, and •'(11(1 iaiHls i^^ nil and singular other the premises hereby 1 he said niort- conveyed or hereinbefore mentioned or in- j^aj.;(.'e. tended so to be, with their and every of their appurtenances unto the said mortgage", his heirs, executors, administrators and assigns in manner aforesaid, and according to the true intent and meaning of these presents. 7. And that "■ And also, that from and after default on dct'inlt the '^''"" ''"PP''" to be made of or in the pay- , ,, ment of the said sum of nionev, in tlie said iiiort''a'^ee shall , .• i \i • . . " ", above proviso mentione(ira- ijitiiili 258, Hupt'd) ; also 53 V. c. 27, s. 1, (par. 257, COLUMN TWO. of the said money or interest or any part of - either of the same, according to the true intent and meaning of these presents, and of the proviso in that behalf Iiereinbefore contained, and calendar months shall have thereafter elapsed without such pay- ment being made (of which) default, as also of the continuance of the said principal money and interest, or some part thereof, on this security, the production of these presents shall be conclusive evidence), it shall and may be lawful to and for the said mortgagee, his heirs, executors, adminis- trators or assigns, after giving written notice to the said mortgagor, his heirs or assigns, of his intention in that behalf, either personally or at his or their usual or last place of residence within this Province not less than previous, without any further consent or concurrence of the said mortgagor, his heirs or assigns, to enter into possession of the said lands, tene- ments, hereditaments and premises hereby conveyed, or mentioned or intended so to be, and to receive and take the rents, issues and profits thereof, and whether in or out of possession of the same, to make any lease or leases thereof, or of any part thereof as he shall think fit, and also to sell and absolutely dispose of the said lands, tene- ments, hereditaments and premises hereby conveyed or mentioned, or intended .so to be, or any part or parts thereof, with tiie appurtenances, by public auction or private contract, or partly by public auction and partly by private conti*act, as to him shall seem meet, and to convey and assure the the same when so sold unto the purcha.ser Section aeod. 200 VoWh.H OF SAU: Section 360d. COLIMX ONE. '■ COLI'MN TWO. or pxircliascrs tlicroof, his lioirs and assif,'iis, or as he, slio or they shall direct and ap- point, and to execute and do all such assur- ances, acts, nuitters and thin<:^s as may he found necessary for the purposes aforesaid, and the said ni()rt^a>,'ee shall not he respon- sihle for any loss which may arise hy reason of any such leasinj,' oi sale as aforesaid, unless the same shall happen hy reason of his wilfjil nej^'Iect or default ; and it is here- hy further agreed hotween the parties to these presents, that, until such sale or sales shall he made as al'or»'snid, the said mort- Kaj,'et', his hcir-i. executors, administrators, or assif,Mis shall and will stand and he pos- sessed of and interested in the rents and profits of the said lands, tenements, here- ditanu'Uts and premises, in case he shall take possession of the same on any defiiull as aforesaid, and after such sale or s;iles shall stand and he possessed of and inlir ested in the moneys to arise and he pro- duced by such sale or sales, or which shall he rectMVed hy the m()rt^'aj,'ee, his heiis. executors, administrators or assif,'ns, hy reason of any insurance tipon the said premises or any jiart thereof, upon trust in the first place to jiay and satisfy the costs and chaises of preparing' for and nukim,' sales, leases and conveyances as aforesaid, and all other costs and charges, damage-^ and expensi'S which the said mortgagee, his heirs, executors, administrators or assigns. shall hear, sustain or he put to for taxe-;. rent, iiisuram-es and repairs, and all other costs and charges which may he incerred in and ahout the exeeution of any of the trusts in him herehy reposed, and in tl i' .1 /'/'/•; .v/'/.v A. 2()1 ('()r.I•^r^'()NK. t'or.lMN TWO. action SMd. lu'xt plapi> to pay mill satisfy the principal ' — sutu of tnoMcy mwl iiitorost hereby socuretl or iiu'iitiontxl or iiitciuled so to he, or so much thereof us shall remain due anil un- sntislii'd up to ami inclusive of the day whereon the said principal sum shall he paid and satisfied ; and after full payment and satisfaction of all such stuns of nnmey and interest as aforesaid, upon this further trust timt the said nj()rt,i,'aj,'«'e, his heirs, execu- tors, administrators or assi<,'ns, do and shall pay thy surplus, if any, to the said niort- i^M^'or, his executors, administrators or assii,'ns, or as he shall direct and appoint, and shall also, in such event, at the request, costH and charf,'es in the law of the said inortj,'a','or, his heirs or assijjns, convey and assure unto the said mort^ b J^ .s<° C, ^& Ua i ;\ \ ft ^ <' 6^ <^ %"- 202 POWER OF SALE. H' ~' Sections 260d-260e 1 1 ■j! U :', ) COLUMN ONE. COLUMN TWO. have and be entitled to his right of fore- closure of the equity of redemption of the said mortgagor, his heirs and assigns in the said lands, tenements, hereditaments and premises as fully and effectually as he might have exercised and enjoyed the same in case the power of sale, and the other former provisos and trusts incident thereto had not been lierein contained. 15. Provided 15. And it is further covenanted, declared that the mort-^'^^ agreed by and between the parties to ■1 . ihese presents, that if the said mortgagor, his ^ . f. htirs, executors or administrators, shall tram tor arrears ^^^^^^ default in payment of any part of the it ■ " iiiterest at any of the days or times h '• ioro limited for the payment thereof, it i.i il and may be lawful for the said mort- gagee, his heirs, executors, administrators or assigns, to distrain therefor upon the said lands, tenements, hereditaments and premises, or any part thereof, and, by dis- tress warrant, to recover, by way of rent re- served, as in the case of a demise, of the said lands, tenements, hereditaments and premises, so much of such interest 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, as in like cases of distress for rent. [260e.] 16. Provided, 16. Provided always, and it is hereby thnt in default ^'^^''^^®^ expressly declared and agreed by « , , i and between the parties to these presents, 01 tne payment; ^j^^^ if any default shall at any time of the mterest happen to be made of or in the payment of hereby secured, the interest money hereby secured or men- the principal tioned, or intended so to be, or any p^rt of interest [See nupra (par, 255b), R. S. 0. 1887,c. 102,88. 16, 17; see also c. Ill, s. 17, infra, par. 261.] APPENDIX A. 263 COLUMN ONE. hereby secured shall become payable. [See supra, para- l/ifiphs 2S, 99, with cases cited.] COLUMN TWO. thereof, then and in such case the f ."'ncipal money hereby secured or mentionea, or in- tended so to be, and every part thereof, shall forthwith become due and payable in like manner and with the like consequences and effects, to all intents and purposes whatso- ever, as if the time herein mentioned for payment of such principal money had fully come and expired, but that in such case the said mortgagor, his heirs or assigns, shall, on payment of all arrears under these presents, with lawful costs and charges in that behalf, at any time before any judg- ment in the premises recovered, or within such time as, by the practice of the High Court, relief therein could be obtained, be relieved from the consequences of non- payment of so much of the money secured by these presents, or mentioned, or intended so to be, as may not then have become pay- able by reason of lapse of time. 17. Provided 17. And provided also, and it is hereby that until de- ^"^*'^®^ expressly declared and agreed by and fiiilf nfnn ni pnf "^^^^^^^^ ^^^^ parties to these presents that " ^ until default shall happen to be made of or the mortgagor ij^ ^j^g payment of the said sum of money shall have quiet hereby secured or mentioned, or intended so possession of to be, or the interest thereof, or any part of the said lands, either of the same, -or the doing, observing, performing, fulfilling or keeping some one or more of the provisions, agreements or stipulations herein set forth contrary to the true intent and meaning of these presents, it shall and may be lawful to and for the said mortgagor, his heirs and assigns, peaceably and quietly to have, hold, use, occupy, pos- sess and enjoy the said lands, tenements, Section S60e. f -I i! ' i 264 POWER OF SALE. Section 3606-261. COLUMN ONE. COLUMN TWO. hereditaments and premises hereby conveyed or mentioned, or intended so to be, with their and every of their appurtenances, and receive and take the rents, issues and profits thereof to his own use and benefit, without let, suit, hindrance, interruption, or denial of or by the said mortgagee, his heirs, executors, administrators or assigns, or of or by any other person or persons whom- soever lawfully claiming, or who shall, or may lawfully claim by, from, under or in trust for him, her, them or any or either of them. R. S. 0. 1877, c. 104, Schedule B. K. S. 0. 1887, CAP. 111. ^a] [261] Real Property Limitations Act. {8ee supra, paragraph-section 173.) i! ■A '.A : ,.«*l Noanears 17. No arreais of rent, or of interest in respect of rent or tobr^* of any sum of money charged upon or payable out formorl^ of any land or rent, or in respect of any legacy, or than six -. . i <• i f i^ years.imp. any damages in respect oi such arrears oi rent or l^ii' ^' 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. R. S. 0. 18'77, c. 108, s. 17. APPENDIX A. 265 18. Where any prior mortgagee or other incum- brancer has been in possession of any land, or in the receipt of the profits thereof, within one year next before an action is brought by any person entitled to a subsequent mortgage or other incum- brance on the same land, the person entitled to such subsequent mortgage or incumbrance, may recover in such action the arrears of interest which have become due during the whole time that such prior mortgagee or incumbrancer was in such pos- session or receipt as aforesaid, although such time may have exceeded the said term of six years. R. S. 0. 1877, c. 108, s. 18. Sections 2 61262 ^ Exception in favour of subse- quent mortgagee when a prior niortRageo has lioen in poKM'ssion Idem. s. 42. [262] Mortgages and Charges of Land. (See supra, paragraph- section 25.) 19. Where a mortgagee has obtained the possession or receipt of tue profits of any land or the receipt of any rent comprised in his. mortgage, the mortgagor, or any person claiming through him, shall not bring any action to redeem the mortgage, but within ten years next after the time at which the mortgagee obtained such possession or receipt, unless in the meantime an acknowledg- ment in writing of the title of the mortgagor, or of his right to redemption has been given to the mort- gagor or some person claiming his estate, or to the agent of such mortgagor or person signed by the mortgagee, or the person claiming through him ; and in such case no such action shall be brought, but within ten years next after the time at which Mortgagor to be bar- red at end of ten years from the time wlien t)io mortgagee took pos- session, or from tlio last written acknow- ledgment. Imp. Acts, ;)-4 W. IV. c ,'27, 8. -28 and 37-38 V. c. ^7, a. T J ii ■■[A 2m ■s| ^ Section 26!i. Mortfiagee may enter or sue witliii) ten years from last pay- ment Imp. Act, 7 W. IV., and 1 V. C.28. Money charged upon land and legacies to be deemed satisfied at the end of ten years if no inter- est paid or acknow- ledgment given in writing in the mean- time. Imp. Acts, 3-1 W. IV. c. 27, s. 40; and 37-38 V. c. r>7, s. 8. POWER OF SALE. such acknowledgment, or the last of such acknow- ledgments, if more than one was given. R. S. 0. 1877, c. 108, s. 19. 22. Any person entitled to or claiming mider a mortgage of land, may make an entry or bring an action to recover such land, at any time within ten years next after the last payment of any part of the principal money or interest secured by such mort- gage, although more than ten years have elapsed since the time at which the right to make such entry or bring such action first accrued. R. S. 0. 1877, c. 108, s. 22. 23. No action or othor proceeding shall be brought to recover out of any land or rent any sum of money secured by any mortgage o> ien, or otherwise charged upon or payable out of such land 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 dis- charge for, or release of the same, unless in the meantime some part of the principal money, or some interest thereon has 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 payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was made or given. R. S. 0. 1877, c. 108, s. 23. [See, as to payment to mortgagee by person not interesietl. Trust and Loan Co. v. Stevenson (1892), 21 0. R. 671.J APPENDIX A. 207 Section 263. REGISTRY ACT, R. S. 0. 1887, CAP. 114. [263.1 [See suprd, paragraph-section 67.] 35. This Act shall not extend to any lease forKeRisna- a term not exceeding 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. R. S. O. 1877, c. Ill, s. 37. R. S. 0. 1887, CAP. 110. AN ACT RESPECTING TRUSTEES AND EXECUTORS AND THE ADMINISTRATION OF ESTATES. 8. The bona fide payment of any money to and ^^^'ir'.J'st trustees to be the receipt thereof by any person to whom the effectual same is payable upon any express or implied trust, or for any limited purpose, and such payment to and receipt by the survivois or survivor of two or more mortgagees or holders, or the executors or administrators of such survivor, or their or his assigns, shall effectually discharge the person pay- ing the same from seeing to the application or being answerable for the misapplication thereof, unless the contrary is expressly declared by the instrument creating the trust or security. R. S. 0. 1877, c. 107, s. 7. See also Cap. 102, s. 15. [As to s. 8, cf. mfra's. 21, and Imperial Acts 22 and 23 Vict, c. 35, s, 23, and 23 and 24 Vict. c. 145, s. 29.] 16. Where any person entitled co any freehold Executors land by way of mortgage has departed this life, and |t«j?|f,^ /^fc^ his executor or administrator has become entitled to the money secured by the mortgage or has n 2G8 POWER OF SALE. ^mT" ^-ssented to 9 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 hfetime, 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 dis- charge the mortgage debt and the mortgagee's* estate in the land ; and such executor or adminis- trator 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 exoner- ating the estate, or any part of the mortgage lands without payment of money ; and such conveyance, assignment, release, or discharge shall be as effec- tual as if the same had been made by the person having the mortgagee's* estate in the land. E. S. 0. 1877, c. 107, s. 15. See dso Cap. 102, s. 12. Certificate 17. Evcry Certificate of payment or discharge of payment "^ i • ir vaHd^at^^ of a mortgage, or of the conditions therem, or oi time^slven. the lauds or of any part of the same, or of any paj-t of the money by the mortgagee or his assignee, his heirs, executors, administrators or assigns or any one of them, at whatsoever time given, and whether before or after the time limited by the mortgage for payment or performance, shall, if in conformity with The Begistry Act, be valid to all intents and and purposes whatsoever. K. S. 0. 1877, c. 107, s. 16. See also Cap. 102, s. 13, which is in iden- tical terms. [* Instead of " mortgagee's," ;cap. 102, s. 12 (which is otherwise in identical terms), reads " legal." ] Rev. Stat c. 114, mpp APPENDIX A. 209 i3a.] [See supra, paragraph -section 8.] Section 263A« 18. Where, by any will coming into operation Devisee in after the eighteenth day of September, 1865, or raise mm.- after the passing of this Act, a testator charges his "^^i'^To*' real estate or any specific portion thereof, with the charges, payment of his debts or with the payment of any 8taudin« ^ •, _ r ,/ J want of legacy or other specific sum of money, and devises ^,^\;?g7^„ the estate so charged to any trustee or trustees for lluV Aci. the whole of his estate or interest therein, and does*5.*^i4 not make any express provision for the raising of such debt, legacy or sum of money out of such estate, the said devisee or devisees in trust, not- withstanding any trusts actually declared by the testator, may raise such debt, legacy or money as aforesaid by a sale and absolute disposition, by public auction or private contract, of the said real estate or any part thereof, or by a mortgage of the same, or partly in one mode, and partly in the other, and any deed or deeds of mortgage so executed may reserve such rate of interest and fix such period or periods of repayment as the person or persons exe- cuting the same think proper. R. S. 0. 1877, c. 107, s 17. lerwise in 19- The powers conferred by the last sec- tion shall extend to all and every the person or persons in whum the estate devised is for the time being vested by survivorship, descent or devise, or to any person or persons appointed under any power in the will or by the High Court to succeed to* the trusteeship vested in such devisee or devisees in trust as aforesaid. K. S. O, 1877, c. 107, s. 18; Power «ivon by Iflst sectJdii extended to surviv- ors:, devis- ees, etc. Imp. Act, 22-23 V. c. :i,5, s. 15. H. !i ii i 270 Seotloni aesaaesb. Eveoutor to havie liowor of rai8inR money, ■whove there is no Bufflcient devise. Imp. Act, 22:a V.c. :«, B. 16. POWER OF SALE. 20- If a testator who creates such a charge as is described in section 18 does not devise the real estate charged as aforesaid in such terms as that his whole estate and interest therein become vested in any trustee or trustees, the executor or executors for the time being named in the will (if any) shall have the same or the like power or raising the said moneys as is hereinbefore conferred upon the devisee or devisees in trust of the said real estate ; and such powers shall from time to time devolve to and become vested in the person or per- sons (if any) in whom the executorship is for the time being vested ; but any sale or mortgage under this Act shall operate only on the estate and inter- est of the testator. R. S. 0. 1877, c. 107, s. 19. ot^noT^ 21. Purchasers or mortgagees shall not be bound to inquire as bouud to iuquiro whether the powers conferred by to 6X6rci86 * of rowers, thc preccdiug three sections of this Act, or any of .Kn.**" them, have been duly and correctly exercised by the person or persons acting in virtue thereof. R. S. O. 1877, c. 107, s. 20. :263b. I Sections 18 to 21 not to 22' The provisions contained in the preceding atfect^cer- fonr scctious sliall not in any way prejudice or extend to affcct any sale or mortgage already made or here- devises in , , , i -i -\ • » • 1 1 fee or in aftcr to DC made under or m pursuance of any will tail. Imp. 18. Act ^23^ coming into operation before the eighteenth day of September, 1865 ; but the vahdity of any such sale or mortgage shall be ascertained and determined in all respects as if this Act had not been passed APPENDIX A. 271 and the said several sections shall not extend to a **°V2° 263 D. devise to any person or persons in fee or in tail, or — for the testator's whole estate and interest charged with debts or legacies, nor shall they affect the power of any such devisee or devisees to sell or mortgage as he or they may by law now do. R. S. 0. 1877, c. 107, s. 21. 23- Where there is any will or codicil of any Powers of deceased person, whether such will has been made, ™*ybe ' ^ ' ' exerciaeu or such person has died before or after the first day wh^Jlf no °' of Janflary, 1874, any direction whether express or son u *'^'" implied, to sell, dispose of, appoint, mortgage, in- 12„^^«''''«» cumber or lease any real estate, and no person is by the said will, or some codicil thereto, or other- wise by the testator appointed to execute and carry the same into effect, the executor or executors (if any) named in such will or codicil shall and may execute and carry into effect every such direction to sell, dispose of, appoint, incumber or lease such real estate, and any estate or interest therein, in as full, large and ample a manner, and with the same legal effect, as if the executor or executors of the testator were appointed by the testator to execute and carry the same into effect. R. S. O. 1877, c. 107, s. 22. 24- Where there is in any will or codicil AdminiK- "^ trator wuli thereto of any deceased person, (whether such will ^^'Jjj'y'J'^'' has been made, or such person has died before orpowerfot after the first day of January, 1874), any power to^otheex aHy executor or executors in such will to sell, dis- pose of, appoint, mortgage, incumber or lease any nvr w 272 Sections 2e3b-263o. Hov. Stat. <•■ !)(), B. rtSj. APPESDIX A. real estate, or any estate or interest therein, whether such power is express, or arises by iniph- cation, and where, from any cause, letters of administration with such will annexed have been, by a Court of competent jurisdiction in Ontario conunitted to any person, and such person has given the additional security required by s. 55 of The {Surrogate Court h Act, ..uch person shall and n)ay exercise every such power, and sell, dispose of. appoint, mortgage, incumber or lease such real estate, and any estate or interest therein in as full, large and ample a manner, and with the same legal effect for all purposes, as the said executor or executors might have done. li. S. O. 1877, c. 107, s. 23. 8ee siqmi, paragraph-section 8.j r203c. i't Or when no cue uanRul in the will to execute powers of sale, etp 25. Where there is in any will or codicil thereto of any deceased person (whether such will has been made or such person has died before or after the first day of January, 1874,) any power to sell, dis- pose of, appoint, mortgage, incumber, or lease any real estate, or any estate or interest therein whether such power is express, or arises by implication, and no person is by the said will, or some codicil thereto, or otherwise by the said testator appointed to exe- cute such power, and letters of administration witli such will annexed, have been by a Court of compe- tent jurisdiction in Ontario, committed to any person, and sudi person has given the additional security before mentioned such person shall and may exercise every such power, and sell, dispose Al'l>i:SJJl\ A. '21:] if Ilia \v of, appoint, inortj^a^e, incumber, or lease such rcnl ^jSo*" estate and any estate or interest therein, in as full, — lar^'e and ani])le a maimer, and with the same le^al cll'ect as if sucli last named jierson had been ap})()inted by the testator to execute such power. K. S. (). IS77, c. 107, s. '24. 26. Where any person has entered into a con- i^xntor. tract in writinjL,' for the sale and conveyance of real J';;,','.',^,,'.". estate, or of any estate and interest tlierein, andti'uiT."" such person has died intestate, or without provid-i^-vii-, ing l)y will for the conveyance of such real estate, or estate or interest therein, to the person entitled or to become entitled to such conveyance Mider such contract, then, where upon the su})position of the deceased L)einjL>" alive, he would be liable to execute .i conveyance, the executor, administrator, or administrator with the will finnexed (as the case may be) of such deceased person, shall make and give to the person entitled to the same a good and sufficient conveyance or conveyances of such estates, and of such nature as the said deceased, if living, would be liable to give, but without cove- nants, except as against the acts of the grantor ; and such conveyances shall be as valid and effec- tual as if the deceased were alive at the time of the making thereof, and had executed the same, but shall not have any further validity. R. 8. 0. 1877, c. 107, s. 25. 27. Every executor, administrator, and admin- t) uics ^ ' • J ' ' liii.iiit istrator with the will annexed, shall, as respects ^l.tol: the additional powers vested in hhn by this x\ct, -18 i and GS 1 exe- aud a iiiiinis- IT.P.H.- H! m m •274 nnVKU OF SALE. 263c"6T ^'^'^ '^^^y money or assets by him received in conse- tiator qiience of the exercise of snch powers, be subject iictinu under liowcr oe un.ier the to rU the HabiHties, and compellable to dischar liowcr ; ill , i • i i • i tiii« Aci. r^]] w^Q duties ot whatsoever kmd, which, as respects the acts to be done by him under such powers, would have been imposed upon an executor oi- other person appointed by the testator to execute the same, or in case of there being no such executor or person, would have been imposed by law, upon any person appointed by law, or by an\ Court or Judge of competent jurisdiction to execute such powers. R. S. O. 1877, c. 107, s. 'li\. i'.nv..rs 28. Where there are several executors, adniii!- [i;i;; ;^,^'"o istrators, or administrators with the will annexed. smvhL" and one or more of them die, the powers hei('l)\ created shall vest in the survivor or survivors. R. S. (). 1877, c. 107, s. 27. Trustoes, etc., may sell liy iiieiliuin of reKistry, or may be tlieiiiselvea registered. liiiiJ. ;iS-39 V. C.H7, s. OH. LAND TITLES ACT, R. S. O. 1887, CAP. iU). 2()4. TRUSTEES AND MORTGAGEES. 8. (1) Any person holding land on trust for sale, and any trustee, mortgagee, or other person having a power of selling land, may authorize the purchaser to make an application to be regis- tered a3 first owner with any title which an owner is authorized to be registered with under this Act, and may consent to the performance of the con- tract being conditional on his being so registered : APPKNDIX A. 'llh conse- jubject charge aspect-. jcnvers. iitor or 3xefiitt' Sllcll isetl ^y by any execute , adiiiin- nnexed. , hevc'l)>' irvivovs. P. lit'.. Irust for person uthori/.e )e ref>is- hi owner Ihis Act. [he con- [istered : or any of such persons except a mortgaj^ee, nia\ ^^f^^"^ himself apply to be registered as such owner with the consent ol the persons (if any) whose consent is required to the exercise by the applicant of his trust or power of sale. (2) Any mortgagee having a power of selling land as aforesaid, nuiy apply to have the mortgagor or other person owning the equity of redemption registered as owner with any title as aforesaid. (8) The amount of all costs, charges, and expenses properly incurred by such person, in or al)out the application, shall be ascertained and declared by the Master of Titles and shall be deemed to be costs, charges and expenses properly incurred by such person in the execution of his trust or in pursuance of his power ; and such per- son may retain or reimburse the same to himself out of any money coming to him under the trust or power, and he shall not bo liable to any account in e(piity in respect thereof. 48 V. c. '2:1, s. 71. 28. (1) Every registered owner of land may, civation m the prescribed manner, charge the land with the"'"' '''^- payment at an appointed time of any principal o^cViar'^ sum of money either with or without interest, or;!s-:''i'v\'^c; as security for any other purpose, and with or with- out a power of sale to be exercised at or after a time appointed. (2) The charge shall be completed by the Master of Titles entering on the register the person in whose favour the <'harge is made as the owner of tlie charge, and the particulars of the charge, and of the power of sale, if any. I i\y 276 POWER OF SALE. ir':'W' M m I ^2M^ (8) The Master of Titles shall also, if required, deliver to the owner of the charge a certificate of charge in the prescribed form. 48 Y. c. 22, s. 20. Iiiiplied covenants 29. Where a registered charge is created on covenants. ^jv^. o o vJc'w!"*' I'liid, there shall be implied on the part of the person being registered owner of the land at the time of the creation of the charge, his heirs, executors, and administrators (unless there be an entry on the register negativing the implication), as follows ; * * * * Provision wlioie char oxpr to be niaile Hndor nev. 8. Where any charge, whether under seal or lessed i^ot, is expressed to he made in pursuance of The ict respecting Short Forms of Mortgages, or refers Stat 'e" or! thereto, and contains any form of words contained in items numbered 1, 2, 8, 7, 8, 12, 14, lo or Ki of column one, of Schedule B, to the ]ast mentioned x\ct, or to the like effect, whether expressed in the first or third person, such words shall have the same meaning and effect as the words under tlie corresponding number in column two in the said schedule ; the directions in the said schedule shall also apply to the said charge. 50 Y. c. 15, s. 11. Rcmtav of 33. Subject to any entry to the contrary on charge" tlic register, the registered owner of a registered with a 1 • 1 . . . I'^'i^'-'j^l^, charge with a power of sale m:iy, at any tnne after wis' ^7.'^^' the expiration of the appointed time, sell and transfer the land (that is, the interest therein which is the subject of the charge), or any part of such land, in the same manner as if he were the regis- tered owner of the land, to the extent of the interest therein aforesaid. 48 Y. c. 22, s. 81. APPEXDIX A. 'in [uired, :ate of -■i. 2(3. bed on of the at the heirs. he an iatiou), seal c)r of Tin' ir refers ntained or 1() of ntioned ill the ve the der the he said le shall IS. 11. trary on bistered he after lell and |i which lof such [e regis- :205.] H. S. 0. 1887, CAP. 13>3. [See sui>r«, paragraph-section 108. J AN ACT RESPECTING DOWER. Beution 265. 1. Where a hiishand dies beneficially entitled to ^ower om any land for an interest which does not entitle his ^^'^ *^'^"^^««- widow to dower at common law, and such interest, whether wholly equitable or partly legal and partly equitable, is an estate of inheritance in possession, or equal to an estate of inheritance in possession i^other than an estate in joint tenancy), then his widow shall be entitled to dower out of the same bind. li. S. 0. 1877, c. 1'2(>, s. 1. 2. AVhere a husl)and has been entitled to a ri<^ht of entry or action in any land, and his widow would be entitled to dower out of the same if he had recovered possession thereof, she shall be entitled to dower out of the same although her husband did not recover possession thereof ; but such dower shall be sued for or obtained within the period during which such right of entry or action might be enforced. K. S. 0. 1877, c. 12(3, Dov.er wIr'Io lins- banil hatl a. ri(,'lit of entry. s. 2. t ■■( 3. Dower shall not be recoverable out of anvDoworn r ^ vecovor- separate and distinct lot, tract or parcel of hindf^^^Jf^"/,',' which at the time of the alienation by the husl)andi;aune* or at the time of his death, if he died seised aliened thereof, was in a state of nature and unim- proved by clearing, fencing, or otherwise, for the ■ iiV :«>■■;■ ffffl 27S POWER OF SALE. ^^266°° the purposes of cnltivation or occupation ; but this shall not restrict or diminish the right to have woodland assigned to the dowress under section 1-2 c!'w.s'i.V of the Dower Procechire Act, from which it shall hv lawful for her to take firewood necessary for her own use, and timber for fencing the other portions of land assigned to her of the same lot, tract, oi- parcel. R. S. O. 1877, c. 120, s. 3. Kiiectot 5. No bar of dower contained in any mortgage, lj,u-of ^" . , ^ ^ nimtga"es ^^ otliBr instrumeut intended to have the effect of a mortgage or other security, upon real estate, shall operate to bar such dower to any greater extent than shall be necessary to give full effect to the rights of the mortgagee or grantee under sucli instrument. 42 Y. c. 22, s. 1. wifeen- Q In the event of a sale of the land comprised titled to ^^' _ J- sunituiof ii"^ such mortgage or other instrument, under any money **" power of Sale contained therein, or under any legal fioln sale proccss, the wife of the mortgagor or grantor who under ■ J- ' c3 <-> o mortgage g^all havc SO barred her dower in such lands, shall be entitled to dower in any surplus of the purchase money arising from such sale, which may remain after satisfaction of the claim of the mortgagee or grantee, to the same extent as she would have been entitled to dower in the land from which such surplus purchase money shall be derived had the same not been sold. 42 V. c. 22, s. 2. Payment of money 7. (1) A mortgagee or other person holding hito court, r^j-^y money out of which a married woman shall be dowable under the preceding two sections of this Act, may pay the same into the High Court to the APPESDIX A. 279 credit of such married woman and the other per- S^^}9^^ J. 26S-265a. sons interested therein. (•2) The High Court, or a Judge thereof, may, on a summary apphcation by petition or motion, order tor make such order for securing the right of dower ofriKiu'of" any mamed woman, in any money out of which she shall be dowable, as may be just. 42 V. c. 22, s. 8. 8. A widow shall not be entitled to take her interest in money under the preceding two sections ^yj,,^^^.,^ of this Act, and in addition thereto a share of the "''"''*""• money as personal estate. 42 V. c. 22 s. 4. R. S. 0. 1887, CAP. 187 (INFANTS). 2G5a. Infant's Real Estate. [See st(i>r(i, paragraph -section 95.] 3. (1) Where an infant is seised or possessed of, ^,f,'!;,°^ stale or entitled to any real estate in fee or for a term Qf°f"'f'"''^ amy bo authorized years, or otherwise howsoever, in Ontario, and the [Cf. c.k. High Court is of opinion that a sale, lease or other u."s.o.]H7 disposition of the same, or of a part thereof, isc-io^^w: necessary or proper for the maintenance or educa- tion of the infant, or that, by reason of any part of the property being exposed to waste and dilapida- tion, or to depreciation from any other cause, his interest requires, or will be substantially promoted l)y such disposition, the court may order the sale, or the letting for a term of years, or other dispo- sition of such real estate, or any part thereof, to be made under the direction of the court or one of its ofHcers, or by the guardian of the infant, or by a 280 POWER OF SALE ^266a° Person appointed by the court for the purpose, in such manner and with such restrictions as to the court may seem expedient, and may order the in- fant to convey the estate as the court thinks propei-. E. 8.0. 1877, c. 40, s. 70. No sale (2) But no sale, lease, or other disposition shall cciiirary to ^ ' _ ' _ ■*■ _ a.iLvise. jjg made against the provisions of a will or con- veyance by which the estate has been devised or granted to the infant or for his use. li. 8. 0. 1H77, c. 40, s. 77. Th.Mii.pii- 4. The application shall be in the name of the beiivnext infant by his next friend, or by his guardian; but fiuHniin.i. j^i^.Qi i^iot be made without the consent of tlie infant if he is of the age of fourteen years or upwards. E. S. 0. 1877, c. 40, s. 78. When a 5, Wlicrc tlic court dccuis it convenient that .1 substitute ammimed convcyaucc should be executed by some person in to convey, ^j^^ placc of au iufaut, the court may direct some other person in the place of the infant to convey the estate. E. 8. 0. 1877, c. 40, s. 79. Deeds exe cuted in 6. Every such conveyance, whether executed h?f[nSo by *b^ infant or some person appointed to execute be valid, ^j^g same in his place, shall be as effectual as if the infant had executed the same and had been of the age of twenty-one years at the time. E. 8. O. 1877, c. 40, s. 80. Tiio Court 7. The monevs arising from such sale, lease or to direct .." ini ^ • -i i-i cafionof" <^^1^6i' disposition suall be laid out, applied and proceeds. (;[igposed of in such manner as the Court directs. E. 8. 0. 1877, c. 40, s. 81. APPESDIX A. 281 8. On any sale or other disposition so made, the nioney raised, or the surphis thereof, shall be of the same nature and character as the estate sold or disposed of ; and the heirs, next of kin, or other representatives of the infant, shall have the like interest in any surphis which may remain of the money at the decease of the infant, as they would have had in the estate sold or disposed of, if no Side or other disposition had been made thereof, li. S. 0. 1877, c. 40, s. 82. Section 26Sa. (Jimlity of suiiilus liiouevs niioii sale of real ustato. 9. If any real estate of an infant is subject to dower, and the person entitled to dower consents ill writing to accept in lieu of dower any gross sum which the court thinks reasonable, or the perma- nent investment of a reasonable sum in such manner that the interest thereof be made paj-able to the person entitled to dower during her life, the court or judge may direct the payment of such sum in gross, out of the purchase money to the person entitled to dower, as may be deemed upon the principles appli- cable to life annuities a reasonable satisfaction for such estate ; or may direct the payment to the person entitled to dower of an annual sum, or of the income or interest to be derived from the pur- chase money, or any part thereof, as may seem just, and for that purpose may make such order for the investment or other disposition of the purchase money, or any part thereof, as may be necessary. K. 8. O. 1877, c. 40, s. 83 ; 42 V. c. 22, s. 5 (8). Ill LIlSOS of ilowev n ciiiiiiiosi- timi limy bo iiunle. Ill m 2.S2 POWER OF SALE. Section 263b. 54 VIC. CAP. 11). (ONT.) AN ACT RESPECTING CERTAIN DUTIES. POWERS AND LIABILITIES OF TRUSTEES. '2()5b. (R. A. 4th May, ISOI.) [See sit /mi, paragraph-sections 11 et sn/., and 117.] TTER MAJESTY, by and with the advice and consent of the Le<^islative Assembly of the Province of Ontario, enacts as follows : — siuutTitie. I This Act may be cited as " The Trustee Act, i89ir lutorpre tlltlOU. 2. (1) For the purposes of this Act the ex- jiuu-. act pression " trustee " shall be deemed to includ.^ au 5l-r,j. V. c. ^ 59, s. 1. (3) ] (3xecutor or admini-atrator and a trustee whose trust arises by construction or implication of law as well as an express trustee, but not the official trustee of charitable funds. ii..si.(ji. (2) The provisions of this Act relating to a trustee shall apply as well to several joint trustees as to a sole trustee. (3) The expression "stock" shall include fully paid-up shares. (4) The expression " instrument " shall include au Act of the Lei>islature of Ontario. AcUlitional powers 3. The powers hereby conferred are, in addi- tion to the powers conferred by the instrument, if any, creating the trust. [To this section there is no corresponding section in the Imperial Act.] APPKSDIX A. •2s:i 8. (1) No sale made by a trustee shall be iiii- ®2°"°° peached by any ceafni que trust upon the ground ;;;;];:7f,y— that any of the conditions subject to which thenorin'r sale was made, were unnecessarily depreciatory, oiVc.rt.i'i'i unless it also appears that the consideration for the iiuip. Act sale was thereby rendered madequate. cii.s.M .1 [For case where sale restrained because of depreciatory con- dition, see Dance v. Goldingham, L. R. 8 Ch. App. 902.] (•2) No sale made by a trustee shall, after the tn- « i-jh- execution of the conveyance, be impeached as against the purchaser, upon the ground that any of the conditions subject to which the sale was made were unnecessarily depreciatory, unless it appears that such purchaser was acting in collusion with the trustee at the time when the contract for the sale was made. (3) No purchaser, upon any sale made by a[ii. hmi:))! trustee, shall be at liberty to make any objection against the title upon the ground aforesaid. [Case of piTrchaser objecting on such ground. Dunn v. Flood, L. R. 28, Ch. Div. 58G.] (4) This section shall apply only to sales madeu'^ » 'x^h- after the passing of this Act. fAg to depreciatory conditions see supra, paragraph -sec- tion 111. J 10. (1) Where a trustee has improperly ad- Trustee vanced trust money on a mortgage security which »jjO[«^J|!,'j.''^ would at the time of the investment have been a *"'°"''' ^ [Imp. Act. proper investment in all respects for a less sum thansJ;!"^ 5 ajj was actually advanced thereon, the security shall be deemed an authorized investment for such less sum, and the trustee shall only be liable to make ,.'H^ 2H4 r I Section 26Sb. Ill), rt. 5il'i1 Actions a({aiii8t tnisteoH. I lull). .U;t, -)1-"2V. (". 5:i. s. S 1 1 POWER OF SALE. good the sum {idviineed in excess thereof witli interest. [For former law, see Fry v. Tapsoii, L. R. 28 Ch. Div. 282] . (2) This section shall upply to investments made is well before us after the passing of this Act, except where some action or other proceeding- is pending witii reference thereto at the passing of this Act. [As to the following section, see R. S. 0. 1887, c. Ill, s. 30 (2), for the former law.] 13- (1) In any action or other proceeding against a trustee or any person claiming through him, except where the claim is founded upon any fraud or fraudulent breach of trust to which tlie trustee was party or privy, or is to recover trust property or the proceeds thereof, still retained by the trustee, or previously received by the trustee and converted to his use, the following provisions shall apply : — [As to application of statutes of limitation to surplus, see sni)f (1)|. I'rovisii. III). H. I'J (•2)1. 14. (•) I'liif^ Act sliiill apply as well to trusts created l)y an iiistriiiiieiit executed before as to trusts created after the passiu;^' of this Act. (•2) Provided always, tliat save as in tliis Act ex])ressly provided, iiotiiin^- tlierein contained shall authorize any trustee to do anything- which he is in express terms foi-hidden to do, or to omit to do anythin,!,' which he is in express terms directed to do l)v the instrument creatiu''' the trust. -HvK-.] H. S. (). 1SS7, CAP. 147. AN ACT RKSPKCTINd SOLICITORS. SoiJciTou's Costs. Solicitors to deliver tlieir bill one iiiontli lietore l)riii>,'inR action for costw. [The following provisions are based upon the Imp. Act (J i^ 7 Vict. c. 79, s. .S7, as amended by the f.ei/al I'lurtititmers Act, 1875, 88 i^ 80 Vict c. 79.] 31- No action shall he brought for the recovery of fees, charges or disbursements, for business done by a solicitor as such, until one month* after a bill thereof, subscribed with the proper hand of such solicitor, his executor, administrator or assignee (or, in the case of a partnership, by one of the partners, either with his own name, or with the name or style of such partnership), has been de- livered to the party to be charged therewith, or sent by the post to, or left for him at his counting- house, otlice of business, dwelling-house, or last •For calculation and running of month, see Ryall v. Reg., 12 Jiir. 458 : Blunt v. Heslop, H Ad. and Ell. 577 ; R. S. O. 1887, c. 1, s. 8 {16). Al'PKSIHX A. JS7 known phicc of iilxxlc, or has Ihh'H oiicloscd in ov 8*°^°" jiecoiiipaiiicd by a It'tter siibscriix'd in like nmnntT, refemn«,' to siicli hill. H. S. (). 1S77, c. UO, s. iVl. 32- I'pon tiu' (ippliciition of the party <'liMr^('-'',';\^^',|*;'' able' by such bill within tlu' month tlic Mi'diCoint or a Jud^o thcrt'oi', or a Judj^c of a County Court shall, without money bein^' brou^dit into court, .viVr the bill and the demand thereon to be taxed by the })roper otlieer of any of the courts in the county in which any of the business charged for in the bill was done, and the court or jud^e making such reference shall restrain the bringing' any action for such demand pending the reference. K. S. 0. 1877, c. 140, s. :«. 33. Ill t'Hse no application is made within the^""""'" uionth, then the court or judge upon the applica- ;'';'{fo ''"' tion of either party may order a reference withapriYua-'''' such directions and conditions as he may deem «'ti>'^^»- proper; and may upon such terms as may be thought just restrain any action for such demand pending the reference. B. S. 0. 1877, c. 140,s.:il. 34. No such reference shall be directed upoiiNoretv.- ■ •■• t'uce ti) he application made by the party chargeable with such ",'^;Jj;;;'.' l)ill after a verdict has been obtained or a writ ol ['any ^ incunry executed, or after twelve months from theaftm^'^*"' . *' . ' . verdict or tune such bill was delivered, sent or left as afore- 'j^^^^,';/;; said, except under special circumstances, to be aifuvery proved to the satisfaction of the court or judge to " whom the application for the reference is made. li. S. 0. 1877, c. 140, s. 85. •Mortgagor is not " party chargeable " but is " third party." ol 4^ '288 Section 269c. If parties reluso to nttl'Hd othcer ninv tn\ hill /'.r iiaitr. ■>■'. ■r'h i:m" Costs of taxation ; how \m\- Able. Order to direct oHiccr to tax costs refeience and to certify ^vhat he finds (hie on taxa- tion. POWER OF SALE. 35. Ill case either party to such reference, having due notice, refuses or ne<^lects to attend the taxation, the officer to whom the reference is made may tax the bill ex parte ; and in case the reference is mnde upon the application of either party and the party chargeable with the bill attends the taxation, the costs of the reference shall be paid according to the event of the taxation, except that if a sixth part is taxed off, the costs shall l)e paid by the party by whom or on whose behalf such bill was delivered ; and if less than a sixth part is taxed off, then by the party chargeable with such l)ill, if he applied for or attended the taxation. R. S. 0. 1877, c. 140, s. 36. 36- Every order for such reference shall direct tilx'^c"sts of the officer to whom the reference is made, to tax the costs of the reference, and to certify what, "upon the reference, he finds to be due to or from either party in respect of such bill and of the costs of the reference, if payable. R. S. 0. 1877, c. 140, s. 37. Officer mny nuiko spei-ial certificate Costs oti taxation i 1 such case. 37- Such ofHcer may certify specially any cir- cumstances relating to the bill or taxation, and the court or judge may thereupon make such order as may be deemed )'ight respecting the payment of the costs of the taxation. K. S. 0. 1877, c. 140, s. 38. special 3Q, In case the reference is made when the (hriictions *^*^ coi'Is'or" same is not authorized except under special cir- JmiVhe'' cumstances, as hereinbefore provided, the court or judge, m making the same, may give any special APPENDIX A. 289 directions relative to the costs of the reference. R. S. (). 1H77, c. 140, s. 89. Section 2«5c. 39. Where no bill has been delivered, sent or where uo left as aforesaid, and where the bill if delivered, ''/'V?"'"'"' sent or left, might have been referred as aforesaid, uyS'^of any snch court or judge may order the delivery of i>ai>er" "^ a bill, and may also order the delivery up of deeds or papers in the ])os3ession, custody or power of the solicitor, his assignee or representatives, in the same manner as has heretofore been done in cases where any such business had been transacted in the court in which such order was made. li. S. 0. 1877, c. 140, s. 40. loces- ttrst nstaiice in iou on bill to 40. Ill pioving a compliance with this Act it^^"yi'n shall not be necessary in the first instance to prove "ct the contents of the bill delivered, sent or left, but p'ove' con- it shall be sufficient to prove that a bUl of fees, ^i^iivermi. charges or disbursements subscribed in the manner aforesaid, or enclosed in or accompanied by such letter as aforesaid, was delivered, sent or left in manner aforesaid ; l)ut the other party may show that the bill so delivered, sen^ or left, was not such a bill as constituted a bona fnlc compliance with this Act. li. S. 0. 1877, c. 140, s. 41. 41. A Judge of the High Court or a Countyjuv(.] Power of Sale Clauses : Additions to [207^ Short Form. The following is a neat clause sometimes in- serted in mortgages in this Province — where registrars are paid per folio — and which has the advantage of implicating the second colnnni of Schedule B to the Short Forms Act : Section 267. Bivins , notict). "PEOVIDED further that such notice of saleM°?.i«o' may be effectually given, either in the manner' aforesaid, for by leaving the same with a grown up person on the said lands or any of them, if occupied, or by placing the same on some portion thereof if unoccupied] or by publishing the same for four suc- cessive weeks in some newspaper published in the county in which the mortgaged premises lie, and shall be sufficient whether or not addressed to any person or persons by name or designation, and not- :k)0 I'tiwEii or s.ir.i:. strong iion- iiKiuiry claiiRe. 36?-268" ^vithstaiulinj,' any person or persons to be Jiffected ^ ' thereby mny be nnborn, luuiseertained, or under Xu^e. disal)ility, and no purclniser slnill be l)oinid to in- (jnire into tlie legality or regularity of any sale under the said power, nor shall any irre«^ularity or want of notiee invalidate any such sale." This form may be shortened by inserting in the bracket the words "or being left at or upon some part of the premises hereby conveyed." ,2()S .1 sfrofif/er iion-inqitirij clati.se is : " PHOVinEI) ALSO that no purchaser at any sale purporting to be made in pursuance of the afore- said power shall be bound or concerned to see or inquire whether any such default has been made or continues, or whether any such notice has been given as aforesaid, or as to the necessity or expedi- ency of the stipulations subject to which such sale shall have been made, or otherwise as to the pro- priety of such sale or regularity of its proceedings, or be affected by notice that no such default has been made or continues, or notice given as afore- said, or that the sale is otherwise unnecessary, improper or irregular; and notwithstanding any impropriety or irregularit>y, or notice thereof to such purchaser the sale as regards such purchaser shall be deemed to be within the aforesaid power and be valid accordingly." monSKo?' There may be added : ' ' AND the remedy (if any) of the mortgagor, in respect of any impropriety or irregularity whatsoever in any such sale, shall be in damages only." Ai'i'i:siu\ II. 801 209 'MMJOVIDKDTHA'L', in addition to tlic powers and discretions provided l»y tlie said Sliort I'\)nns Act {or said Act respectinj^' Short I'oniis of ^^ort^fa^'es) and still in pnrsnance tiiereot'. such sale as aforesaid may he subject to any stipulations as to title or (>vidence, or conuuenceinent of title or otherwise which tlu' inort^^'aj^^ees shall deem proper; witli hdl power to buy in, or rescind or vary any contract for sale and to resell without bein^' resj)onsil)le for any loss occasioned thereby" 270 Insei't aftei' Sliort h'orni with one month's default and one month's notice : Section 269-372. (NlIllltiollN mill i'iisc'Im- "1MU)VI])ED FL'nTHJ'MJ that on two months' .Vrir'wu'h default as aforesaid, the said mort^^agee, his execu-J'.otk.o.'""'^ tors, administrators or assigns nniy, without any notice whatsoever, exercise the powers cont'erred by clause 14, Schedule 13 of H. S. (). 1S.S7, c. 107." 271 "PKOVIDKD ALSO that if the said mortgagor shall become insolvent or enter into any composition with his creditors, then and in such cfise the mortgagee's power of sale under or by virtue of these presents shall forthwith and without the necessity for any notice or dennmd for payment whatsoever, and still with the benefit of clause 14, Power without noticu in caso iif iii- solvoiicy (for iiisDi'- tioii ill liuildin^; inort^uge, ftf.) Schedule B of K. S. 0. 1887, c. 107, become exer- cisable." 1 272.; " PllOVIDEl) ALSO, ai idit is hereby Kxclusion declared, that no pow er of sale of the premises of powor of sale. hereby demised, or any part thereof shall be exer- it' ml]' 802 POWER OF SALE. 2S274" ci'^'^ble in respect of, or applied to this security under or by virtue of R. S. O. 1887, c. 102, Part II., or of any other statute, or otherwise howso- ever. 273. i PROVIDED ALWAYS, and it is Rescrva- Su'soi expressly understood and agreed, that the power morgafiee. ^^. ^^^^ herein conferred, and all the provisions therein contained shall be exercisable and avail- able by the said mortgagee, his executors, adminis- trators and assigns." Stiimla- tiou* for profit costs '274." If one of the mortgagees is a solicitor, as is often th? ease where trust money is lent on mortgage, the following clause may be added : — "PROVIDED ALWAYS and it is hereby agreed that the fact of the said mortgagee, or of any other person for the time being entitled to the benefit of this security being a solicitor, shall not prevent him from advising and transacting business in relation hereto or to the premises hereby conveyed, and from being entitled to charge the said mortgagor, his heirs, executors, adminis- trators and assigns, for such services the usual and accustomed costs and charges as between solicitor and client, and that until payment all moneys, which shall become due in respect of such services as aforesaid, with interest th- eon as froin the time when the same shall respectively have become due, shall be a charge upon the premises in like manner as the said prin- cipal and interest hereby secured." (Bythewood tV: Jarman (1886), Vol. III., p. 1001). APPESDIX B. 803 ;274a.l AND THE SAID MOETGAGOK covenants with the said mortgagee that he, the said mortgagor, his heirs, executors, or adminis- trators will, on demand, reimburse the said mort- gagee, his executors, administrators or assigns, all expenses imder the powers, or any of the powers herein contained, together with interest at the rate aforesaid on all moneys so expended, and that such expenses, together with said interest, shall con- stitute a charge on the premises hereby conveyed, such charge to be enforceable by the same means and in the same manner, as in the case of the principal and interest hereby secured. Section 274a2741>. RxproBB covenant as to ex- penses of mortgagee ;274b PROVIDED, that the said niortgagee, ;^i"/^'^*w^« on demand of payment for months, may'*"^*^' on notice enter on and lease or sell the said lands ; and it is hereby agreed and declared that this power of sale shall have the meaning ascribed to it by clause fourteen in Schedule B to the Act respecting Short Forms of Mortgages. Where the mortgage is by sub-demise add : And ^^01- ^nie it is hereby also declared that after any sale made l"nn''?o I'i under the aforesaid power, the said mortgagor, his trust for *• ' _ 00; purcliaser. executors, administrators and assigns shall stand possessed of the premises sold for 'the last day of the term granted by the hereinbefore recited indenture of lease, in trust for the purchaser, his executors, administrators and assigns, and to be assigned and disposed of as he or they may direct. | 304 POWER OF SALE Section 276. 275. Notice of Sale : Common Fokm. I !' 11 Is .1% I '1^ 1^ TO {nameH of jmrties entitled). I (o?- /rt') (name of mortgagee or person exercising), of the of in the county of , hereby give yon notice that demand payment of the sum of {state ajnoiuit) and interest thereon at the rate of per centum per annum from the day of one thousand eiglit H.citai of hundred and ninety , due to the said [name of mortgagee), upon a certain Indenture of Mortgage executed .by {name of mortgagor) and wife, to {name of mortgagee), and dated the day of , one thousand eight hundred and ninety , and which mortgage was registered in the registry othce for the county of the dfiy of 189 , for securing payment of (state anion nt) and interest thereon, as therein mentioned, on the following property, namely, all that [insert descrijition as in mortgage). And take notice, that unless payment of the said mortgage money and interest, costs and expenses be made within Ume calendar month from the time of your being served herewith, the said {name of mortgagee) will proceed, with or without any con- sent or concurrence on your part, and without any further notice to you to enter into possession of the said premises, and to receive and take the rents and profits thereof ; and whether in or out of possession of the same, to make any lease or leases of the same, as the said {name of mortgagee) shall see fit; AND TO SELL AND APPENDIX B. 805 said ABSOLUTELY DISPOSE of the said lands and sectio" «70-27o. premises, either by auction or private sale, or partly by auction and partly by private sale, as the said [name of mortgagee) may deem proper, either for cash or upon such terms of credit as {name of mortgagee) may think proper, and to convey and assure the same, when so sold, unto the purchasers thereof, as shall direct or appoint. Dated at this day of A. D. 18 . {Name of mortgagee)^ per {name and address of solicitor), • Solicitor for Mortgagee. line of kion )r on I Lse or AND ['270. ! Notice for Publication in Newspaper. MORTGAGE SALE. TO {names of j^ fir ties entitled), I {or we) {name of mortgagee or person exercising), of {description of 77iortgagee) hereby give you notice that demand payment of the sum of (state amount) and interest thereon at the rate of per centum mo"t«age. per annum from the day of 18 , due to {name of mortgagee), upon a certain mortgage by {;?ia?ne of viortgagor) and his wife, to {name of mortgagee) dated {day of month), 18 , and regis- tered in the registry office for the county of {day of month)^ 18 , in book , for as No. H.P.8. — 20 306 POWER OF SALE. Sections 276-277, % \ fJlTS J Order. Costs. The lands included in the above mortgage are (insert short description). AND TAKE NOTICE that unless payment of the said mortgage money and interest and costs be made within (o7ie month) from the first publication hereof {name of mortgagee) will proceed, with or without any consent or concurrence on your part, and without any further notice to you, to enter into possession of the said premises [and so forth, as in i^receding form). Order allowing "Further Proceedings," under [277.] R. S. O. 1887, c. 102, s. 30. In the matter of a mortgage purporting to be made between [describing the parties thereto as in the mortgage) y and bearing date on the day of 18 . {Name of Judge). In Chambers. Upon application of the solicitor for {name of mortgagee) J and upon hearing read the affidavit of it is ordered that the said {name of mortgagee) be at liberty to advertise for sale the lands and premises included in the said mortgage [concurrently with the period of notice of sale as provided in the said mortgage] or [at the time of serving, by advertisement, notice of sale as provided in the said mortgage] . And it is further ordered that the mortgagee be allowed the costs of this application. Dated at , this day of 18 . {Signature of Judge) APPESDIX B. 307 [277a.] Indorsement of Service of Notice. Sections 277a-277b. SERVED A TRUE COPY of this notice onmciorso- uient by personally, at on the i'|;Xg day of 18 . "°^"=" Or, SERVED A TRUE COPY of this notice on , by delivering to, and leaving the same with , at his residence, situate at ; [or by delivering to, and leaving the same with , at his last residence within this Province, being ; or by posting the same up on the door of his last residence within this Province, being , on day, the day of 18 . (Signed) {Address, etc.) it [277b. J Acknowledgment of Notice. RECEIVED this day of a duplicate of the within notice. Or 18 \(lu]is'-ion ' of service. I ACKNOWLEDGE to have received notice of sale by {name of mortgagee), of the premises therein described, and hereby admit service thereof, this day of 18 . (Signed) 808 POWER OF SALE. Sections 278-279. Euumer- ation of iniprove- meuts. 278. Form of Advertisement. MOirrGAGE SALE. UXDEK and by virtue of the powers contained in a certain mortgage which will be produced at the time of sale, there will be offered for sale b> PUBLIC AUCTION, hy {name of auctioneer), at {name of particular j^lnce an n:: I -rty {short description hy lots ami streets). vJ.x t le property are {enumerate iniprorc- men ts) . For terms and conditi-jns of sale apply to {Name and address of solicitor). Dated 18 . Mode of service. 279' Declaration of Service of Notice. IN THE MATTEE of a certain inortoage mad( n")n* by {name of mortgagor) to {name of mortgagee), bearing date the day of IS , and of sale proceedings thereunder. I, of the of in the county of DO SOLEMNLY DECLARE that 1. I did on the day of one thousand eight hundred and , personally serve with a true copy of the Notice of APPENDIX D. 809 Exereisiiim- Power of Sale hereunto unnexed, by fl^^sj" delivering such copy to, and leaving the same with him or, as the case may he, with a grown up per- son residing on the premises mentioned in same.] And I make this solemn declaration conscien- tiously believing the same to be true, and by virtue of the " Act respectincj extra-judicial Oaths.'' Declared before me, at the of in the county of this day of 18 A commissioner, etc iii' 280. Declaration of Posting up Notice. 1. I DID, on the day of 18, take a true copy of the annexed Notice of Exer- cising Power of Sale to the premises mentioned in the same, being on street ; {or, as the case may he) in the of , and did post ^here the said copy in a conspicuous position on the *'°''^^ ' door of the building on the said premises. [281.] Declaration of Insertion of Advertisement. 1. I HAVE SEARCHED the fylesof the (name^r'"' •/ \ of searc of paper), a paper published in the county of and find that the [notice of Exercising Power of Sale_^ , or [Advertisement of Mortgage Sale or searcb. r I 810 POn-EB OF SALE. m\ 2Vi'-2m" A'^ic^'ioi^ Sale; , a copy of which is hereto annexed, marked " A," was duly inserted in the issues of the {7iame of 2^cL])er), of the dates following, that is to say {give dates). Method of Riving notice [282/: Declaration of Notifying Interested Persons. 1. I DID, on the day of 18 mail [by registered letter! , at the post- office a true copy of the annexed notice of auction, 07', the annexed newspaper advertisement, o?', the annexed poster, to each of the following persons, at the addresses following their respective names (set out names and addresses). I. if J*! Places where posted. [283.J Declaration of Bill Poster. 1. I DID, on the day of 18 post \or cause to be posted^ , in various parts of the of , one hundred {or ivhat- ever number) large advertising posters, advertising the property comprised in the above mortgage, for sale by public auction under the powers contained in the said mortgage. 2. That such posters were placed by me [or caused to be placed in conspicuous places w^here they could be displayed to the best advantage. APPENDIX B. '284." Declaration of Auctioneer. 311 Section 284. 1. I DID, at the time and place set out in the advertisement heremito annexed, marked "A," and subject to conditions of sale hereunto annexed, marked "B," offer for sale by public auction the lands and premises described in the said advertise- ment and the above mortgafje. "0"'0^ 2. The result of such sale is as follows : (a) That there were no bids for the said ^^ ''''^«- property, and accordingly I was unable to sell the same ; or, (b) That the highest sum bid for the said fvjan'^'' property was $ , which was j^ss ''*^^''^® *"'' than the reserved bid fixed by the vendors in accordance with the said conditions of sale, and accordingly I was luiable to sell the said property ; or, (c) Is as appears from the signed contract s^jCcessfui hereunto annexed, marked " C." 3. That the sum set forth in the said contract was the highest sum bid for the said land, and that {iiaine of purchaser), whose name is subscribed to the said contract, was declared by me to be the highest bidder for, and became the purchaser of the said land, at the price of $ , being the price in the said contract mentioned. 4. That the said sale was conducted by me in a fair, open and proper manner, and according to the best of my skill and judgment. 812 POWER OF SALE. Sections 280-286a. ^285. J Declaration as to Default. aeciamnt.'^ 1. I AIM (sct out capcicUij), {iiicl liave a personal knowledge of the matters in connection with this mortgage. 2. That the instalment of {interest, or principal, or whatever it i.s), due on the day of 18 , under a certain mortgage, made by to , bearing date the day of 18 (and now held hy so and so), has not been paid up to this date] . ■Vl.i; k( ■285a.] Agreement by Mortgagee to Postpone Sale UNDER Power. . THIS AGREEMENT, made in duplicate the day of A.D. 18 between , hereinafter called the party of the lirst part, and , hereinafter called the party of the second part. Whereas , by Indenture of Mortgage^ day of A.D. 18 , and registered in the registry office for the county of , on the day of A.D. 18 , did mortgage unto , the lands and premises therein described, for the sum of dollars. Recital of sale pro- ceedings, dated the 'fj APPKSDIX II. 3ia And whereas the said party of the first part **28to° is now owner of the said niort^^a^^e, and the said party of the second part is now owner of the eijuity of redemption in the said niort^a<^ed premises. And whereas hy virtue of a power of sale con- tained in said mortgajj^e the said party of the first part, after giving due notice of sale under the power, has now, at the request of the said party of the second part, consented to postpone such sale for the period of , for the purpose of enahling him, the said party of the second part, to obtain the money for paying off the said mortgage, on his entering into the stipulations hereinafter contained: NOW THIS ACxREEMENT WIT- NESSETH that, in consideration of the premises and of the agreement by the party of the second part hereinafter contained, he, the said party of the first part hereby agrees, with the said party of the second part that he will not, for the space of from the date hereof, sell, or proceed to offer for sale, under such power, the said mortgaged premises, but will permit the said party of the second part to enjoy the same during such period of extension. The said party of the second part, in considera- tion of such forbearance, hereby agrees that, in case of default of payment of the principal or interest of said mortgage at the expiration of such extended time of payment, he will not in any way hinder or attempt to prevent the sale of the said premises by the said mortgagee, under the power of sale contained in said mortgage. And the said party of the second part hereby further agrees that I Time dur- ing wliiclj extoiidod. Agreement to execute convey- ance. 314 POWER OF SALE. 1" sr'< a86?-285b '"^'^^ ^^^^ ^"'^y ^® ^^^^^ without any further notice to him, the sjiid party of the second part, his heirs or assi<^ns, hereby waiving Jiny irreguhirities in the aforementioned notice ah'eady given. And the said party of the second part further agrees that, upon request, he will execute a good and sufficient conveyance of the mortgaged premises to the said mortgagee, his heirs or assigns, or to such person or persons as he or they may direct ; and that he will make such conveyance without a previous sale in confirmation thereof ; and in the event of such sale under said power, or in the event of a convey- ance in pursuance of this agreement, he will deliver up peaceable possession of the said premises to the purchaser at such sale, or to the grantee under such conveyance. And the said party of the second part further agrees that, during the period of extension hereby allowed, he will not do or suffer any act to be done which may injure the said premises, but will keep the same in all respects in good repair and con- dition. IN WITNESS, etc. ?285h.] Agreement for Extension of Mortgage. rt Kecital of mortgage. MEMORANDUM OF AGREEMENT made in duplicate this day of A.D. 18 , Between (name and description of viortgagee) of the first part and (name and description of mort- APl'KSDIX Jl. 315 gnjor) of the second part and wife of section the said party of the second part, of the third part. — Wliereas the said party of the second part by Indenture dated the day of 18 , mortgaged certain hinds and premises, tlierein mentioned, to the said party of the first part to secure repayment of dollars and mterest thereon, at the rate of per cent, per annum, payable at the times and in the manner therein set forth ; and the said party of the third part did join therein for the purpose of barring her Dower. And whereas there is now owing to the said party of the first part in respect of the said Inden- ture, the sum of Dollars. And whereas the said party of the second part is desirous of extending the time for payment of the said prin- cipal sum, and the said party of the first part has consented thereto, on his waiving all privileges for prepayment contained in the said mortgage and subject to conditions herein. NOW IT IS HEREBY AGREED that the New re- deinption following redemption clause shall be substituted "'*"'"' for that contained in said mortgage, which will be construed and read as follows : Provided the said mortgage to be void on payment of dollars, as follows : (Insert j))'oviso agreed upon) together with interest upon all unpaid principal (both before and after maturity and default) at the rate of per cent, per annum, payable yearly, on the day of , in each and every year, until the said principal sum shall be fully paid and satisfied. The first of said instalments of principal V'- ll -.1 I).' /Jl() Sections 286b-28Sc Saviiifjas to sureties. POWER OF SALE. iiiid interest to become payable on the day of 18 , and such interest to be com- puted froin the day of , 18 . In all other respects tlie said mort^^a<.;e shall continue in force as written. Tlie said party of the second part covenants with the said party of the first part that he will pay the said principal sum and and interest on the days find times above stated, and in default of payment of any instalment of interest, the same shall become principal and bear interest at the rate aforesaid. The said party of the first part consents to such extension on the terms and conditions above stated, in so far as he may do so without infring- ing^- on or in any way affectin<^- the interests of other parties in the said mortgaj^ed premises, and the said party of the first part reserves to himself all his rights and remedies against any surety or security he may have for payment of said debt or right he may have against any third person or persons upon his original security. IN WITNESS, etc. [285c.; Assent of Subsequent Mortgagee Indorsed upon Extension of First Mortgage. WHEREAS I, {name, etc) am the holder of a second mortgage upon the premises herein de- scribed or referred to, in consideration of the sum APPEM)IX A. of one dollar to nie psiid, and of the within written un-reenient for extension I do hereby assent to the same, and do a^ree not to tender payment of the mort^^an-e therein inentioned nntil after tlie expira- tion of th(> extended time of payment agreed upon l)y the witliin written extension. Dated this day of 18 Si'i'iied mi S actions 2^6c-286. lint lo |)i-i.. piiy. 28G.: Conditions of Sale. HtamUncj Conditions of Sale hij the Court {Form No. 43, Appendix to C. It.) 1. ^o person shall advance less than $10 at any hiddin-- nnder $500, nor less than $20 at any hiddin-- over $500, and no person shall retract his biddinn-. 2. The hi«,diest bidder shall be the pnrchaser ; and if any disput(> arise as to the last or hi^^hest bidder, the property shall be pnt up at a former bidding. 3. The parties to the action, under the excep- tion of the vendor, { , pay the remainder of the pur-j=^'*|«^^ flin '^**'' '**'^'* (5) The purchaser shall, on or before the day of chase money, at the office of Mr. vendor's solicitor [or of the said Mr. 1 , No. Street ; and the purchase shall be then and there completed, and if from any cause what- ever the purchase shall not be completed on that day, the purchaser shall pay to the vendor interest 'As to competency to bid or to purchase, see Kupra, Chapter VIII. Be- sides the cases there cited, may be noted Wallbrid^e v. Trust & Loan Co There an action was brought to set aside a sale of laud under the power of sale in the mortgage by the defendant Company to a co-defendant 1' , who was at the time a clerk in the office of the Company's solicitor, und a subsequent sale by the defendant P. to another. The first sale was in 1880. and this action was not brought till 1888. Falconbridge, J., dis- missed the action. On appeal, held by the Divisional Court (Oalt, C.J., Rose, J., Dec. 20, 181)0,) that there was no evidence that the Company could have obtained a better price for the land than they did obtain, and that the plaintiff had besides excluded himself by his conduct and laches. 320 VOWKR OF SALE. J^ections .^i ^|j(^ i-jii^e of six per cent. ])er Hiiniim on tlie remainder of the purchase money from that day until the conipk'tion of the purchase ; or Orwliei-o a lioitidii IS to he left Oil iiiort- /I I f"1 ' I'osscssii etc. (5a) The purchaser shall, on or before the day of 18 pay the remainder of the purchase money over and alxne the sum of S at the office of ^Ir. , the vendor's solicitor: and shall ^ave a mortf>age for the said sum of 8 bearin<^' interest at the rate of per cent, per annum, payable (half-yearly) as follows: — Insert terms of paynient : . The above-mentioned mort- ^.'i^^e to be drawn by the vendor's solicitor a li(iuidated damages. At^reenn-nt witli inir- cbaser. 2SS. MHMOHAXDl'M. At the sale hy auction, made this day, of the pro})erty comprised in the ahove particulars [lutnic (tnd (Jcscrijifioii of jinrchdsrr), was the highest hidder for, and was declared the purchaser of the said property, at the price of ^ : and the said lias APPKXhIX li. :}2a owed speft pared )1 the tutory fail to us bis /enclor, vitbout at tbe ■ pul)bc d pbu-e, •b iiian- und it" •ty may l(if auyl till d thi to sell. by tlu In dov !l> I sale by [lupvised )tlou ([I liud \va> at tbe paid to , as aj^eiit for and on behalf of l^^^^ {natnc of rcn'Jor), the sum of S , by way of deposit, and in part payment of the ))iirehase money ; and he hereb}' agrees to complete the purchase accordinj^' to the above conditions, and the said , as the vendor's a^^ent, hereby confirms the said sale and acknowledj^es the receipt of the said deposit. Dated 18 Signed [auctioneer or rendor's agcfit). Signed [purchaser). \ -iHHa. Memohanih-m or Aghkemknt isy Aittioneeh. I HEREBY ACKNOWEEDdE that lias been this day declared by me the highest bidder, and pur(diaser of ((/cscriiifioH) at the price ^''"^^' oi' sum of dollars or at the price or sum of per foot frontage or ])er acre and that he has paid into my hands the siuii of dollars as a de])osit and in })art payment of the purchase money; and I hereby agree, that the vendor , shall in all respects fulfil the conditions of sale hereto annexed. WITNESS my baud at of IS . Signed this dav Aucfunierr ■JJUHtlfB mmiamm. 324 VttWER OF SALE. MlOMOKAXlUM OF AgKEEMENT BY Pu«CHASEK. .(■ 'i';. If to imy balmice. I HEREBY ACKNOWLEDGE, that I have this day purchased at public auction all tliat {description) for the price or sum of dollars, ARieenient !^'' ^^r the price of per foot frontage or per acre], and have paid into the hands of the auctioneer, the sum of as a deposit, and in part payment of the said purchase money ; and I hereby agree to pay the remaining sum of unto , the vendor, at on or before the day of and in all other respects on my part to fulfil the annexed conditions of sale. WITNESS my hand, this A.D. 18 . day of ii 288c.] Notice PlRCHASER TO MoRTGAGEE-VeNDOK TO Complete Contract. I HEKEBY GIVE YOU NOTICE and re- quire you to complete the contract of sale bearing date the day of 18 , and entered into between you of the one part, and myself of the other part, whereby you agreed in consideration of the sum of dollars to sell and convey to APPESDIX li. 32.5 me the followiiio- property, thnt is to say : {(Icscrip- sections tion). And I fnrtlier -ive you notice' that if you'— '"^ fail to carry out said contract within days ^''^M're of from this date, I shall seek such relief as I may be'""" entitled to in the courts of justice, o;- 1 shall brin^^ an action aoainst you for specific performance and for dama-es, or I shall treat the contract as re- scinded and void to all intents and purposes, and brino- an action for the recovery of the deposit- money by me paid to you . Dated at this day of 18 Si<>ned [2.s«d. Notice : M01{TGAGKK-^'E^•I)0I{ TO Pl'HCHASEH Co^rl'LETE Contract. TO I HEREBY GR'E YOU NOTICE that the time fixed for completion of the purchase by the agreement, dated the dav of 18 entered into with me by you for the purchase of the followino- property, that is to say : {(hscription), is now long past, and that I am ready and willing to make out and execute and to procure the con'^ currence of all necessary parties, if any, to a conveyance to you, or as you shall direct, Jf the fee simple in possession <>r as fJw case ma// he of the above-mentioned premises, in accordance with the wm^ m'u: :i2() Sestlona 2S8d-289. roWEll OF SALE terms and coiiditions of the said af^reenient ; and that I re([iiire you within days from tiiis date N'litiire of relief. to comidete the pureliase, and pay the remainder of the piu'eliase money witli interest np to tlie (hite of sucli completion, as provided by the said agree- ment ; and tliat I further j^ive you notice tliat I shall hold you liable for all loss or dama;^e wiiich I may incur by reason of any delay or defaidt on your part incom])leting the said purchase, or other- wise in relation to the said aj^reement, or that I shall forthwitli brin^" an action .i^ainst yoii for specific performance, and for damages incurred by reason of your dehiult, oy that I sluill rescind the contract, forfeit the deposit already paid by yoii, and brin<4" an action aj^ainst you for any deficiency on a re-sale . Dated this dav of IS Signed ,281). Purchase Deed (under Short Forms Act). WHEliEAS BY A MOUTCrACVE, bearing date the day of IS , one mortgaged the lands hereinafter described to the said party of the first part, to secure the sum of J? and interest payable as therein men- tioned, which mortgage was expressed to be in ij 1 .i/7'/:\/)/.v /'. )iii'sii;iii('t' of till' Slioft Forms Act, and ( oiit.iiiUMl ;i proviso tliat (ri-clti- c.(/. tlutt i\\v said iiiort.^'a^'cc, on default of [)ayin('nt tor one month, mi^lit, on one month's notice, enter on and lease or sell the said lands) ; and a fni'ther })rovis() that in case default should he made in [)ayment of eithei' principal oi- interest for two months after any payment of either should fall (hie, the power of sale and entry mi^^ht hv acted upon without any notice ; and a Further proviso that in default of the payment of the interest thereby secured, the principal thereby secured should i;"come payable . And wbereas default for months having" been made in the payment of {ejj.^ the interest thereby secured), the said party of the first ])art althou,!4h not reipiired so to do ^^ave to the said [iirinn: of iiiortf/df/oi'), and to all other persons appearing to have any interest in or claim upon the said lands, Notice of his intention to proceed to exercise the siiid power of sale, and thereupon, after more than one month from the giving of such notice, and after public advertisement, did offer the said lands for sale by public auction and the said party of the part, being the highest bidder, became the purchaser thereof , or but no suflicient bid being niacU' therefor, tin; same remained unsold; and such default as aforesaid having continued, the said party of the first part has now agreed to sell the said lands to the said party of the part . 3-27 Section 289. ncfaiilt. notice (111(1 sal.'. ! 328 I'OWEli OF SALE. Jt.i'S Section 289. Cfiiifiikr- atiiin liiii'k 1(11' IlllllUICt^ llf puiclmsc- 11HI|1('\ I. Oiiorative words. HabcinUiiii III pursuance of the preiniscs and in considera- tion of the sum of dollars,! whereof the sum of dollars has heen in hand paid to the said party of the lirst part (the receipt whereof is lierehy acknowledged), and the I'einaining- dollars whereof remains unpaid a lien upon the lands herehy conveyed, and is to he collaterally secured hy a mortgage of the said lands. Tiie said party of the lirst part, hy virtue and in exercise of the aforesaid power of sale, and of all other powers thereunto enahliug, doth grant, etc. To have and to hold, etc. * * crown and suhject to the payment of the said unpaid i)urchase money, and to taxes and local improvement rates unpaid thereon. t IIow far ail excliaiif^e of land (instead of money) is <^ood consider- ation for a sale under power, is dealt with in the followiiij^ case, rei)orted in the daily newspaper reports ; March '2Gth, 1H'.)2. " Chancery Division. Bekoue Boyd, C. , Kmitii v. Si'E.\iiB. — Judgment on appeal by tlie defendant from finding by the Master in Ordinary tliat the plaintiff has a t,'ood title as assignee to a mortgage in question. The mortgaged lands were pur- chased by the mortgagor from one Palmer, who claimed title under a conveyance tc him in alleged pursuance of power of sale in a former mortgage. The defendant in this action alleged that the transaction between Palmer and the original mortgagee was not a sale under the power, but an exchange of the land mortgaged for land owned by Palmer, and that the power of sale did not justify an exchange. The Chancellor hoKls that (apart from the mortgagee having acquired a O- by possession against the mortgagor) the mortgagee was justified land instead of money for the mortgaged property, and tliat the tion was a valid one extinguishing the mortgagor's equity of redt-i Appeal dismissed with costs ; ujt appellant on payment of costs have a reference back to take riva vuiw evidence as to possession. If the further evidence coroborates the affidavits, appellant to pay costs of reference. 'William Macdonald fbr the appjal Eddia for the plaintiff, contra," ion. nay APPKSIHX II. 821) And the ssiid partv of the first ])art covenants ^!^*!,°" *■ " * 283 290. witli the said party of the part that lie haSt,,,,,,,,,,, done no act to encuniher tlie said hinds. [280a. THK SAID PAirJ'Y of the iirst part ii. presents. Til pursuance of the premises and in eoiisidera tioii of tile said snin of dollars, etc. i- '(I Het lease. •i'.M. CoNVKVANCK or l.K.VSiaioI.ns IM>F,l; PoWKK oF SaMI. 'IIIIS IXDKNTriJK, made in diiplieate the dtiy ot" is , Between [luniif and (/rscf/piioii of iiiKi:i> 15Y Building Society indeu Powkh of Sale. Ifpcitiil iif inort(,'af;o THIS IXDKNTUlUv made in duidicate the day of A.I). 18 , in pursuance of the Act respectin*,^ Short Forms of Conveyances, between the Loan and Savin«ifs Society, of in the County of , of the first piirt, and of in the County of of the second part. Whereas by Indenture of Mort^'a^^-e, dated the day of A.D. 18 , and made bet ween of in the Countv of of the iirst part his wife of the second part , and the said society of the ar t, tl le sau I for and in consideration of the sum of advanced and paid to him by the said society, did grant and mortgage to tlie said society the lands and premises hereinaffcr described ; in wliich said Indt'iiture of Mortgage is contained a proviso Al'Pi:SDIX u. ^J^38 I condi- "orth on lid per- d party •oiii and it of the that if the said shoidd well an 1 truly pay ^®°*y° to the said society, their successors or assigns, the ,;;:;; OF Sai.k. cate the irsuance eyanees, Society, the first oiintv of ated tin- lid made f lit , and id •ictv. did lie laii(U ucli said proviso roviKO for rc- said sum of money, interest and charges in e(iual .UMuption. instalments of on the day of every month during the term of months until the said sum of money, interest and charges should be fully paid, and also during the whole time afore- said pay to the said society, their successors and assigns all other monthly payments and contribu- tions for, upon, or in respect of the shares therein mentioned, and also all fines and other charges whatsoever imposed or thereafter to be imposed by the said society and their successors upon the said , his heirs, executors, administrators and assigns, as a member or memhcs of the said society, or upon the shares therein mentioned, or for, upon, or in respect of any default or neglect or breach of any of the rules and regulations or by-laws of the said society by the said his heirs, executors, administrators and assigns, without any deduction or abatement whatsoever, and also all taxes, assessments, premiums of insur- ance, interest thereon, and other charges for, upon or in respect of the said premises and every part thereof, then the said presents and everything therein contained should be void . And whereas it was in and by the said Fndenture of Mortgage agreed that if default {iii.srrf fcrni.s of /xurcr <>/ salr cldHsc). AND WHEREAS the said hath made default in payment for of the said instal- ments of as are in and by the said SI. Aii :V}4 row Kit OF SALE. 8«J*J2?* lioiciubcfore in part rocited Iiulcnture of M oit^a^^'c 292'293. ^ covenanted to 1)0 paid as aforesaid. And whereas the said society, nnder and l)y virtue of tlie said hereinbefore recited Power of Sah', did, on the day of A.D. 18 , sell by public auction at the of the lands and premises hereafter described to the said party of the second ])art, and for the ])rice or sum of , he bein^' declared the hi^diest bidder therefor. Now this Indenture witnesseth, etc., as in 2S1). \'2\)l]. Notice: MoitTGACiKK-YEMtor. to Tenant to Pay Jh:NT to Phuhaser. I HKPKin' CIVK YOU NOTICE that of the of in the Comity of has j)urchased the premises known as (now in your occupation), under the ])ower of sale niortjn'fio- <'"i'< i^'"*'*! ''» <^ uiort^'aj^^' bcariuj^' date the day of IH , and re^nstered in the Pe^nstry Otlice for the County of , on the day of 18 , as Number , and made by one {name of tnorff/df/or) to {(lanic of )H()if(/(((/rr), and now held by me ; and yon are re(|uested to ])ay to the said , or to such person as he juay ajipoint to receive the same, all arrears of rent now due, and also the rent i>avable l)v vou for M'J'IMilX n. whereas he said on the y i)ui)He lids and jiarty of sum of : bidder 331 the said premises on the next dav of pavmeiit of sections Hueli rent, and so all future aceruin- reiits until '''"-''- further notiee from him in that behalf. Dated at this (Signed: dav of 18 1 2.S1). NAM TO ■ () f sal e tegistrv d made sted to n as he ears of vou for •204. Notice: PijteHAsKii of Phemisks to Tenant. IHKKKHV (ilVK \()V XOTICK that hv an Indenture made between one (naiNr ,>/ nnni- (/fi(/rr-rri/(/(,r) and me, hearing date tiie ^'^y ^*^ ^^ , and registered in the He"istrv""'"'"^'"f Oftiee for the Couiit\ of , on the ^^•^'' "^ ^^ . the premises known as (now in y(.ur oeeupatiou), were conveyed to me; and I here])y re.juiiv yon to pay to me', ,t to such person as I may app(.iiit to receive tiie same, all arrears of rent now (hie, ami also the rent i)ay;ihle by you for the said j)remises on the next day of payment of such rent, and so all fntnre accriniig rents until further notice from me in that behalf" iindin default thereof I shall pursue such renicnlirs as are allowed by law for the re<(.very of th(> same. Dated at this (Signed) da\ of bs r ai* IN ■1 ^1 I: 1*4* 3:J() Section 298. (^iiit uhliin. I'OWEU <)l' SALE. 295., Quit Claim Deed uy Moiitgagok to Pur- CHASEK. THT8 INDENTURE, inude in duplicate the day of A.D. 18 , Between , of the first part ; wife of the said party of the first part, of the second part ; and of the third part : WHEREAS the said party of the first part (and the said party of the second part to bar her dower) formerly mortgaged the lands and premises hereinafter described to one , by Indenture bearing date the day of 18 , to secure the sum of dollars and interest as therein provided ; in w Inch mortgage there was a power of sale on default of payment. And whereas default having occurred in the payment of the said sums secured, the said proceeded to sell the said lands, and the said party hereto of the third part becanu^ the purchaser thereof. And whereas the said parties hereto of the first and second parts have agreed with the said party of the third part to testify their assent to such sale and purchase by the execution of these presents: NOW THIS INDENTURE WITNESSETH that the said parties of the first and second parts, for and in consideration of the premises and of the sum of dollars of lawful money of Canada, to them in hand paid by the said party of the third part, at or before the .1 /';•/•; A7>/.v /;. ;j;i7 arty user o of the sent )n of URE first f the irs of id by the sealing and dehvery of these presents (the receipt ^gSm' whereof is lH'rel)y aeknowhulged) have j^ranted, released and (jiiitted claim, and l)y these presents do "^rant release and (juit claim unto the said party of the tliii'd part, his heii'S and assij^ns all their estate, I'ight. title, interest, claim and demand whatsoever, both at law and in e(]uity, or other- wise howsoever, and whether in possession or expectancy, of. in, to or out of all and singular th certain parcel or tract of land and pre- mises situate, Ivin*;' and bein<' Together with the appurtenances thereto be- i^«'»'"'- longing or appertaining, to have and to hold tlie aforesaid land and premises, with all and singular the appiu'tenances thereto belonging or a})pertain- ing, unto and to tiie use of tlie said party of the third part, his heirs and assigns for ever; sul)ject, nevertheless, to the reservations, limitations, pro- visos and conditions expressed in the original grant thereof from the Crown. IX WITNESS WIIEHEOF, etc. 'i'.M). Kkleasp: of E(,>riTV oi- Kkukmi-tion. rv THIS INDEXTUHE, made in duplicate theHci..as..„r day of A.]). 18 ,in^"""^ pursuance of tlie Act respecting Short J'\)rms of Conveyances: Between , whereas, H.p.s. — 22 8:-JH POlVKIi OF SALl-:. if *'*296*'° "^y '^^^ Iiulenture dated tlie day of one thousand ei^ht hundred and , did f,n'ant and niortga^a' unto the hinds hereinafter descrihed, for securing payment of the sum of and interest as therein mentioned: NOW THIS INDENTUl^]: WITXESSKTH, that the said part of the tirst part, in considera- tion of the sum of of Lawful money of Canada, to well and truly paid by the said part of the second part (the receipt whereof is herel)y acknowledged), do grant, release and contirm unto the said part of the second part, heirs and assigns, all And also all estate, right, title, interest and ecjuity of redemption of and in the said lands which the said part of the first part now ha or may heie- after claim, either at law or in equity, of, in, to or out of the said lands : Covcimiit. TO HAVE AND TO HOLD unto the said part of the second part heirs and assigns, to and for and their sole and only use for ever; subject, nevertheless, to the reservations, limitations, provisos and conditions expressed in the original grant thereof from the Crown : The said part of the first part covenant with the said part of the second part that he ha the right to grant and release the equity of redemption of the lands before described: And that the said part of the first part ha done no act to encumber the said lands: And that the APPKSDIX n. m) said part of tho second part shall iiave (juiot ^g^^gr^ possession of the said lands: And that the said part of the first part will execute sueh further assurances of the said lands as may he recjuisite. IX WITXh:SS WHKKKOF, etc. said mt hat he lity of And one no at the 207. Conveyance by a Mohtgaoor and ^Foht- (lAGEE, Part of Plrchase ^[onky reing PAn) to Mortgagee in Satisfaction of his Debt. THIS IXDEXTUUE made in duplicate th(> !|;;:,!S,;!. day of A.l). 18 , in pursuance of the Act respectin<^ Short Forms of Conveyances, Between (niorff/df/t'c) of the of in the County of of tlie first part, (in<)rf(j(i(/(>r) of , of the second part, and (piurJuKfer) of , of the third part : Whereas hy Inden- ture of Mortgage dated the day of and made between the said party of the second part of the one part and the said i)arty of the first part of the other part, the said party hereto of the second part did grant and mortgage the lands and premises hereinafter described to tlie said party hereto of the first part to secure tin* siuii of (/'.r/. ni!!,'',!;'"^!,.'*" 8>J,0()()) with interest thereon : And whereas tht"""''''tTio imrcliase said party of the second part has agreed to sell the'"""*^- said lands and premises to the said party of the third part for the price or sum of (ci/. S;">,()()0) : And whereas there is now due on the securitv of the hereinbefori' recited indenture the suui of (<'.(/. S8,00()) : And whereas it was jigreed and under- stood among all the parties hereto that the said ;U() powKit Oh' s.u.r: 297 li'l m lft< 8ett)o" sniii of (rj/. S:{,()r)0) should br paid to tlie said })artv of tilt' first part out of the said [)iircliasi' inoiioy: NOW THIS IXDKM'l'KE WITNKSS- hi'l'II that ill coiisidcratioii of the sum of (r.7. S:J, ()()()) to the said i)arty of tlu» first part paid by the said party of the third i)art, 011 or before tlu' exccu- tioii of these presents, by the direction of the said })arty of the Mecoiid part, (the receipt whereof the said party of the first part hereby aekii()\vle2,0()0) to the said ])arty of the second part at the same time paid by tile said party of the third ))art (the pay- ment and receipt in iminiier aforesaid of which said sums of S;{, ();)() and S"i,()()0, making' together the said sum of Jij^;"), ()()(), tiie said ])arty of the second part hereby acknowledges) he the said party (if the first ])art as mort^a^^'e, by tlie direction of the said parly of the second part doth ^ rant and lie the said party of the second part doth ^raiit unto the said i)arty of the third part, his heirs and assigns for ever all and singular (^/r.s(y/y^//f>;/) TO HAVK AM) TO HOLD unto the said party of the third part, Ids heirs and assigns, to and for their sole and only use for ever absolutely discharged from all principal money and interest secured by and all claims and demands under the hereinbefore re- cited indenture of mortgage : subject nevertheless, to the reservations, limitations, })rovis()s and con- ditions expressed in the original grant thereof from t he Crown. Itiilifiiilmii (I'siKil corciKi iits hji rrui/t)i\. — /.r., iii(iii k; 342 IHtW'Elt OF SALE. Mctlon — !?^ [:]()()] Items or ]3ill of Costs of Sale rxDEu TowEit. (aDAI'TKD I-ROM Mil. KWAUT AM> OTIIKRg.) Instructions to sell § fj OU Letter to mortgagor .'30 OM Letter to surety (if any) flO 09 Letter to owner of equity r)0 OH Letter to Itogistrar with abstract to be continued. . . 50 OH Letter to Sheriff for certificate 50 OH Letter to Treasurer for certificate 50 OH Having received abstract letter to Registrar with liis fees 50 OS Paid foes Having received certificate letter to Sheriff with his fees 50 OH Paid fees Having received certificate letter to Treasurer with his fees 50 OH Paid fees Drawing notice of sale (for service) per folio 20 Fee revising (to be increased according to length and intricacy) 2 00 Engrossing per folio 10 Each copy for service, per folio 10 Attending to serve, each 50 (Or paid for service, where not served from the office) Declaration of service, each 1 00 Copy to post up, per folio 10 Attending to post upon premises 60 (or paid for posting up, etc.) Declaration of posting up 1 00 [When notice published] Drawing notice of sale for publication, per folio... 20 Fee revising (to be increased, etc.) 2 00 (Other charges for printing and inserting as in advertisement of sale, below) OH OH OH OH OH OH 08 08 OH AI'I'KSniX Jl. AtUnding to searcli files of newspaper ^ CO Drawing declaration of publication of notice, per folio 20 Engrossing, per folio 10 Preparing exhihitK each 10 Attending to declare and paid CO Paid marking exh uits each Instructions for application for order allowing *' further proceedings " (<^'i>m»ty Court) ... 1 00 Drawing atVidavits each, per folio 20 Engrossing, per folio 10 Attending to swear and paid, each 25 Preparing exhibits each 10 Paid marking exhibits Counsel fee on motion 1 )rawing order, per folio 20 Attending to bespeak and for 50 Paid besides filings Fee on order CO Letter to auctioneer as to his terms for sale CO Having received reply, letter accepting his terms. . . CO 1 )rawing advertisement of sale 2 00 for each folio over five, per folio 20 Copy of advertisement for printer, per folio 10 Attending printer with CO Attending for proof CO Kevising proof 1 00 Attending printer with revised proof CO Paid, etc. Copy of advertisement for newspaper, per folio ... 10 Attending for insertion CO Paid. (Ditto for other papers where advertisement appears) (Ditto for printing posters) Attending bill poster with posters CO Paid. Notices of auction to interested persons, each (reg- istered letter) 50 :y;J Section 300. 26 10 20 10 00 03 08 OH m m 34 I Pi tw 1:11 I IF sAi.i:. Section Doclamtion us to Heiulin;,' same, per folio $ 20 300. ,, . .... ,„ hngros-sini,', per lulio 10 I'repariu.L,' oxliihits eacli 10 AttfUtliuj,' to (lecliuv ami pai Paid niarkiiiij: exhibits 10 Drawing particulars ol' property 1 00 Copy for auctioneer, per folio 10 " Drawing eomlitions of sale, per folio 20 Conferring wit!) vendor and rcatling ovor to iiini... 1 UO Fee revising (to bu increased, etc.) 2 00 Engrossing, per folio 10 Copies (for solicitor, auctioneer, vendor, it nL.) each, per folio 10 Memorandum of agreement to be sigiM'd by pur- chaser 1 00 Attendance on persons applying for particulars, each 50 Conferring with auctioneer as to sale 1 00 Settling reserved bid 1 00 Fee on conducting sale when held where solicitor resides 5 00 If solicitor is engaged more than three hours, for every hour beyond that time 1 00 Fee on conducting sale elsewhere, beside.s all necessary travelling and hotel expenses ... 10 00 If the sale occupies more than one day (then according to circumstances) (Where solicitor not present in person) letter to auctioneer for deposit 50 0:) Letter acknowledging receipt of same 50 08 Paid auctioneer's fee (usually 85 to iJ^lO for imsuc- cessful.and $10 to $20 for successful sale, being larger where property sold in lots)... Instructions for declaration setting out default ... 1 00 Drawing same, per folio 20 Engrossing, |)er folio 10 Preparing exhib-.. , each 10 Attending to eclaraiion of publication of advertisement (as above) Having received refjuisitions on title, drawing answers, per folio 20 Fee revising (to be increased, etc.) 2 00 Engrossing, per folio Kj Copy to serve, j)er folio 10 Attending to serve ,-jq Attending purchaser's solicitor, going over re- (luiaitions and answers, per liour ] oo (Declaration to clear up title, etc.) Drawing conveyance, including recitals, allidavit, etc., per folio 20 Fee settling (to be increased, etc.) 2 00 Attending purchaser's solicitor with draft ,-,() Engrossing conveyance, per folio lo Attending execution, each j qq Atlidavits of execution, each i (jo (Ditto with mortgage where vendor prepares same). Attending purchaser's solicitor on settlement 2 00 or per hour i oo Attending to register deeds .-,o Paid fees. AtUjnding for mortgage at registry oflice r.O Total :J4o SeutiOQ 300. I •20 TABLE OF CASES. hh '! TAULKOFCAHIX /'/;(• le/erei.cef tiir tv nertiiiuif. A. Abbott V. Metlcalf. (■>;». AdaniH v. Scott, I'Jl, 12 J. 201. Atldison v. Cox, '222. Aitchison v. Coombs. ir.;». Alberts, In >\\ •i.SO. Alilcrson v. I'Aay, '2'j'>. Aldridi v. Reviioltls. 207. Alison, /iV, 2atii. Allen V. De Groodt, 112. Allen V. Robbing, 217. AllinHlumi, In /v. 2i}l. Anderson v. Iliinnd, ')2. .\ndre\vs v. OMiihonv. 1)J4. Anon ((i Madd. 10). 15. 3«;. l'.»'.t. Arebdeaoon v. Hnwcs. 22ii. Armstrong v. Kanfonl. 200. Asliton V. Corri^jan, t). Aslnvorth v. Morrisey. 8a. Atkinson v. Duffy, 113. Atty-Gen. v. Hardy, l.->. .\>erst V. McLean. 74. Aylward v. Lewis, 71. B. Hacon v. Kennedy. fiO. Haion V. Xortliweritern. 112. liaddsley v. Massey, 2j. llakor, lie, 282. Hiikcr V. Wind. 22."). Bailey v. .Ktna. 127. Bailor v. Daly. 1.(7. Balbridjfc v. Walton. ;{7. Bank of Cppe*- Canada \ . Wu'lucc 12s. Banner v. Berridtle. I'.t7. Barnliurt v. Patterson, l\n. Barrett V. Hartley, 1m2. Barrow v. Wbite, 12t;. Barry v. Anderson, 41. 1,",, ,"o. Barry v. Stawell, 221. Battels V. Henson, Hh, ij-j. Bartlett v. J nil, .40. :«, 71, s:), so. ;),-, 20.S. Bausinann v. Keeliy. ir.i. Ba.xter V. '1 nrnbnll. 71 , Bentty v. O'Connor. IH, 12s, m;, • 227, 22H, 2.57. 210, 211. Bedell V. McClellan. I'.UI. Bellamy v. Brickenden. 17ii. Bell, In ir, lOl. Bell V. Sutherland Bldg. Hoc., l.Vl. Benjamin v. Lon;>bboron.;li, 211 . Bettys V. Miiynard, 127, IM. Bidwell V. Whitney. 2(i;i. j Birch V. Wri^'ht. I'.i. . IJleeker v. Ciraluim, I'.Mi. BicH.r V. Bank of Upper C.ui u\a. 0'.». Blunt V. Heslop, 20.".c. Bolton V. S'lhiion. (.1, :J5() TAllLE OF CASKS. The references Boone v. Clark, IHl. Boulter v. Mutual Loan, '204. Boulton V. Hockinore, 181. Boultou V. Rowland. IH, l'J7, 227. Bowcra v. llcclitman, '2;<. Bowman v. Ash, HO, 137. Bowman v. H viand, ll'J. Box V. Bridf^man, lot). Boyd V. Pctrie, :iO. Bozarth v. Larj^ent, 121. Bradford v. Bellield, 17. Bridt,'cs v. Lonj^man, H. liright V. Murray, 214. British Canadian v. Ray, 43, 51, 55, 5)). Broad v. Selfo, 1H2. Brooke v. Stone, 17t>. Brouard v. l)ninareKu. Canada Permanent v. Teeter, 5(i, 243, Carew v. Johnston, 181. Carroll v. Robertson. 211. Caperto'i v. Landeraft, 200. are to nfctions. Case V. Burton, 23. Casey v. Mclntyre, 102. Casner v. Ilainht, 74. Chalfec V. l-'ranklin, I'JH. Chapman v. Corpe, 1(12. Charles v. Jones, l'.i3, 22<). Chatterton v. Watney, li)l. Chav.iier's Will, In re, 8. Chilton V. Brooks, 115. Chisholm v. Hheddon, (»7. Cholmondeley v. Clinton, 17, l'.». 12',». Clark V Harvey, 43, 45, 51. Clark V. Simmons, 12',», 137. Clarke v. Little, 3!>. Clarke v. Panopticon, 8. Clay v. Sharpe, 3. Cleaver v. Matthews, 121. Close V. Phipps, 213. Cockburn v. Edwards, 32, 55. Cohoes Co. v. Goss, 28. Colj^an V. McN'amara. 107, 38. Colson v. Williams, 18. Commercial Bank v. Watson, 7i>. . Commercial Bank v. Bank of V. C I 204, 207. I Coniyns v. Comyns, 18'2. jCook v. Crawford, 48. ' Cook V. Dawson, 8. Cook v. Hilliard. 107. Corder v. Morgan, 3. Corham v. Kingston, 2t)0c. Cornelin v. Patman, 217. Cottticll V. Stratlon, 237. Cowdry V. Day, 22h. Craddock v. American, 104. j Cranston v. Ct-*ne, 52, ".)'.). I (M'awford v Meldrum, 137. ■ Cremr v. Muir. 231. Croft v. Powell, 1, 14, 20. Cronyn, Kew iV Co., lie, 232. Crust' V. Nowell, 24. Cruso v. Bond, 23. , Curling v. Shuttleworth. 21, :)(>. I Cuahnuui v. Stone, '.»0. TAIiLE OF CASKS. :Jol Tlic references are to nvctionn. I). DaiHx- V. CJoldin^lmm, UA, 20r)h. Diirliiij,' V. Wilson, (;'.i, 70. Davidson v. Hoyes, 74. Davis V. Dfndy. 17-i, 1!»!». Dctillin V. Gale, 22(i. Dexter v. Sliopard, iK>, 12!>. Dicker v. An^'crstein, 22, 1 17. Disclier v. Canada Permanent, 58. Dobson V. Land, 1(5, l')-,, no. Dolman v. Nokos, 131. 1h,5. Donaldson, In n; 22i(. Doolittle V. Lewis, 13!». Downos V. f}razebrook,104, IfiO. Drinan v. Nichols. 2()t». Dnnn v. Flood, 2(ir)b. Durden v. Whetstone, 13t>, 103. Kdmonds v. Hamilton Provident 213 2t;0c. Edmonds v. Waugli, 173. Ellis V. Del!abou«h, Kil. Ellison V. Wrif{>,'art, 102. Forsythe v. Drake, 77. Ford v. Allan, 173, 2(>rib. Ford V. Heeley, 148. Fowie V. Merrill, 83. Fowler v. Taylor, 13H. Francis v. Harrison, 72. Eraser v. Pendkbiiry, 213. Frencli v. Uaron. 1H2. Frieze v. Cliapin, 200. Fry V. Tapbon, 2'"'"'^ ^' ^I<-I''^. Q^^ 2;.7. '""'♦^ ^- •'""<-''<• 1 '■-• Irish V. Aiitioi'li. I IJ. II. Hull V. BHhb, 1(H. Hamilton v. Denny, 17'i. Hamilton v. Hiili)in, HI. Haniiltoji v. luibukee. 28. 80. Harper v. Culvert, I'.t') (ii). Harris v. Creveliuj,', 121. Harris v. Gonimel. 1H7. Hanliu}^ v. IMnj^ey. I'.l'.t. Harron v. Yemen, I'li. Harwood, In re, 27, 144. Hawkins v. Ramsbottom. 7'.'. Heath v. Hall, 171. Heath v. Putji), 2;"». Henry v. Ryan, 222. Herman v. Hocljjes. tj. Hiatt V. Hillman, 122. !!•> Hicksou V. Darlow. 205. Hind V. Poole, IH. Hobson V. Ball, 1 J7. Hood V. Adams. 137. Holland v. Citizens, I'.C.i, 203. Holmes v. Turner's Falls Co., 121. Hoole V. Smith, (",3, C.r,, 213. Horsey v. lloujlh. 12J. Howard v. Fulton, !(0, 112. Howard v. Hardiniu', 101. Howards v. Davis, l.j^t. Howern v. Hradburn. 173. Hughes V. Coles, 2ti;Jb. Hull V. Kint,', 1)2, 121. Huvck V. Graham, 8U. J. Jackson v. Oakshutt, In ir, 1 1'.". Jarvis v. Cook. 13. Jenkins V. Jones, 2(1. 103, Hit 1 2.")7, I'.l'.t. Jenkins v. Pierce, '.tO. Jenninjjs v. Ward, 230. Jessop. /// (•(', 232. Jettison v. Halioran, 102. Johnson v. ('oblei>,'h, is. Jolmson V. Cucks, 112. Jiiimson V. Johnson, .'10. Jones V. Dunbar, 75. Jones V. Mattliie, IVJ, 20'». Judd V. O'Rrien, 80. K. Keen v. C'odd, 71. Kello-;^' V. Carrico, itO, '.I2. Kelly V. Imperial, H3, 112, 23S. Kennedy v. Green, 21S Kershaw v. Kalow, 117, 202. Kilday, In re, 237, 210. j Kilirain v. Killrain, 23m. I Kinii V. Rronson, hO. 137 I Kinj^ V. Heenan, 241. King V. Parish of Hilini,'ton. 2. Kin^'sland. Re, 15, IKO. Kinnaird v. Trollope,01,!»it, 224, 225. 237, 2t;.-). Kirkpatriok v. Lewis. HO Kirkwood v. Thomi)si)n, l."il. 7. i/.'/./'. or en/,. v. ^J.>:{ ///, L. f>iilluiice V. Fisher. 124, 137. I.:iiiil) V :\IoC()niuick, •.'.{«». L.iii.lowiu.is V. ArslifunI, 180, ••'uii,'Hta/f V. roiuvick, 1«1. I'Hikiii V. Uruiity 121. I-Htch V. Kiiil,,|,j.. i,s, i().{ ] ••'7. \.\H, -J'JH. l.cf V. (I 'y, •J>i, Lfith V. Irviiif, Isl. '.^■slif, A',., 17 J. I.'wis V. WVIls. 111. Mttif V. Unuikcr, 221. f-ocklmit V lliii-.ly. II. ''"^•kiiiH V. Hiilstfiiil, lie. /-•iftiis S-. Swift, 221. I'"iii,' V. L,)ii^<, 71, 7H. I niiiiwitii V. Bittles, 208. I-ook V. Keniuy. 142. I.owlaiiil V. Ciaik, S2. 121. f.y.lsfcr V I'dWfll. V.vj, Mr. M'-r,t|| V. Aliiisli. i(,|. Mo( iin.^lK.r V \Vlii.-l,l,,ii, .SI. McComli v. Sp,iii;;lir, 17:). McCiiiln;-!, V. Syki's. 17.(. Ma.',i,.nHi,| V. .M.'I),.,ml.|, 17,{. •Mi-Doiial.l V. Klii,,tt, I7;{. ■^f"' Donald, 7,v. 2.<2. M.ll.iii V. Onlwiiy. IC.I. ^IfKiiy V. Ilowiml, 31. McKay V. Keed, 7. •McLaifii V. Frasir, 107 >IiI.(),),| V. .J,)i,es, 2(l.{. 20."> M. Mainlai,,! v rpj,,),,!, l,s7. Mainnaiiii« v Jfiiison, \r,H. ^Irtjoiv .■\Iiirray. 1^!». -Mrtjuiv Ward, 7".», s,;, m7, l;|-j. >Iaii-..r V. Dix. i.sc. 10, l:{tJ ".P s.- -23 -■^I'll'I'H V. SliaiiK., 207. Miirkfy v. F.aii^-lt.y, 127. ^farriott v. AiidioV, 20. lo.',. l;t.s. Marsh V. Morton, ,sl, iok, 217 Marslilieid, /// ;v, I7,(. Martin v. Hall, 7.',. ■Miutin V. Miles, (17, 210. •Martinson v. Clowes, IC.O. ^lassi-y, li, ;v, 2.J2. Masscy V. Sladon, :,H, 21,;. Mathitson V. Clarke, l((,s'. hi ].,) Matthie V. tdwar.Is, I();t, i„.-, ,,7' -'01,21-,. ■ ■Miiu^'lian V. Shaipi., l,s;|. Alfdskcr V. Swancy, l.-.o. ^It'ier V. Moier. 112. I Melbourne iJankinw Co. v. Harry. ham, l.s7. Afillersh v. Keen, !».-,. j Merest v. Murray. 20(i. I Meriwether v. Craij,', 1(12. j Merritt v. Stei.I.ensoii, In.-,. j .Mftealf V. CaiupioM. 181). i Metiers v.IJrown,!) I, U.i. | ,.;, .,,, Mewhnrn v. Mass, I2n. l.i.i, -■^lilltT V. Cook, .j.-,. -Mill.'r V. Hidl, I2!». I Mocatta V. Mnr^atmvd, 22.-. I Mottatt, /.'-■, 2.t I. Motfatt V. Thompson, 74. -"^'''iik V. iJenjamin, 7;t. M"iitai,MU' V. Dawes, 241. Moiit),'oinery v. Fonl, 107. Montgomery v. Me K wen, 202 Moore V. Shelley, 21:{. More V. Calkins, 2i»|. Morgan v. Davy, 232. Jforoney v. O'Dea, 22(i. Morton v. Hallett, 4.s. Morton v. Hamilton Provident, •>;(■, Mowatt V. Smith, 21. •Mowry V. Sanl.orn. 13.i. -■fuller V. Hayley, 200. Mmisoii V. Kasor. ;!0. Miirpliy V. Meade, 177. :{r,4 I. nil. I: or (ASKS. Th vr /•(''r>V»(i't'.< nil! Id Kt'rdiiiis. N. Nulii>nt»l V. (iiiiiK-, '21'*. •Jl'.t.'J'JU. Nftw V. Ilniiiitli , sV NeltlinriH' V. Hulijiilf, Hit. Nt'Hbitt V. Hicc. !•_'. Niclluls V. Oltn, ICI, NicliulHoii V. .Ifvi'>-. '_'1^<. NiollolHDII V. 'I'lltrli. \H-2. Nilfs V. Itiihsfurd, ;i;i, Norton v. ('oi)j(ir. "J'-'l. Point Urn/,L' J dry Co. v. Hnr^tiN I'udIiv'h 'rniHlfc V, Wlntlnui). '>■>. Potter V. K.lwiuds. ]H> I'owoll V Hopkins, -.'(M. Powell V. 'I'rolt'r, •.■•J(i. Pnitt V. IJmnall, I'.IH. Pratt V. Tucerii, IH. Prt'scott V. PiiiiH)-!, '.t'.i. I'rinceton v. Miinson, "Jt, '>!*. Priclmrd v. Wilson. Hit. l"il,2(Mi. Provost V, Hoedit^er. HO Pnnli W lit now :vi. 0. O'ltriin \. (isw.ild, •Jdl. UDoimli. Wlultv, Oliver v ( cuiri. i:!7. OrJll. /.(■ /-..;ii;. ( (i me \ . Wright. l;i7. (»rr V. lihxekwell. KW ( )sl)orne v. Uowiett. H. < )tter V. \ all.\. l.Vi, P;ilmer v. Ileiidrie, 1 1. Parker A ileii(ir« Cuiitnut. // II' R. w iiMiHden V l.;u i« i\, •.-•J'l, '2-2-2 Itaiidiid \' IIi(/.'lti>n, 'li'i. l!ew V. Lain-. P.ll. HeyiiuldH v. Il-nne-'sy. "is. I '.''.», Jl I. Plindea V. Jiiickliind. 20 >. 'Jlll'i. Iiichnrds v. l''iniii;, '1, l.'iO. Poliertson V. I.oekie. '.(-I iiMlu'iisiin V, Norri^. li'iO. 2'i;i lloliiiKoii \. lledKer. I'.il. liiielie V. I'arnsworth, s}. Pool V. Wheeler, 'i^. Pose V. Pane. i:{.-., •-'1.; P'ii\ TAIlI.E itF CASKS. :i-;o 77/, s. ' rrtcminn nrf I,, ,>rctiiiii.t. Sftlowiiy V. Sfnnvliridtje, \h. Hiiii.l.Tson V. CiiHtoii, 71. Haiiilcrsoii v. Iiict>, 71;. Siinf.i Mmiim v. Coniiflly, ISH. SiuiinlccH V. Diiiimai), lU, S.iwyiT V. Hr.Klsiiivw. M(l. s.iycis V. Wliitfleld, ls'.>. Siiylcs V. Sniitli, 112. SclnterH, In n\ 17;j. Scliiter V. Cottain, 171. 22!». 230. Scoli'liold V. Lockwo.Kl, nt], St'aton V. 'I'wyfonl. -J.l. MciiiliT V. Khcpimnl. ir,. Si'Iwyn V. (Jiiitif, !»7. l(»2, ir,0. Sliaw V. «iiiiiiy. l.-.l. Hht-rwood v. Kaxton, JIO. SliepanI v. Jones, 177, 17<». Siinpson V. Sirii|,..oM, l.'.H, IC.J. Simpson v. Smith, Ki'.i. 210. Hloaii V. Cnolliiinyli, 2f);t. Smitli V. Mi-own, 20;i, 212. Kmitli V. I'ilkin^ton, ll»;t'. Rmitli V. Smitli, T.i. Smitli V. SpeaiH, 2S!i. Simjjs V. Frizoll. 22«. f-olomon V. MeawLor's Contract. /« 'v- .'W, 140. Boiuliamptun HoatCo. v. Mnntz, 20.) Hpain v. Watt, 138, 15s. Kpoer V. lladdiick, .'{7. 8tanes v. Hanks, 170. Stevenson v. Hano, '.12. 12'.t. StfWHit V. Hacon, 112. St«'\vait V. ihown, 'i2. Sticknoy v. Kvans, ;2, lOi). Stocknioyur v. Tobin, 121. StoaKi,'ett. !)2. Htrecter v. ll,l,.y, s.i. Htf-.ther \. l,a\v, I2.s. Hiitton V. Kutton. 17;j. T. I'acey v. Lawrence, •).-,. Talbot V. Frerc, 1ft, l7,s, iy,i Talbot V. Minnett, Hi.-,, ^ Tarn v. Turner, .-,!), (17. I Taylor v. Ueid, <)0. Taylor V. Von Selmeiler, 201. I Teevan v. Smith, 2;V,. iTenmuit V. Tr.nchanl. IC.,-,. I Terry v. Fitzj^erald, 2(l(i. Thomas v. Davie. |:,1. Thomjjson V. Ilt.ywooil, l.<;j. Thomi.son v. Iloininn, 20. Ho j l-".». 1.17, -J-J-i. Thomp.son .V Holts Contract, lu 1 IJ. Thompson V. Hudson, 171. Thompson v, McCarthy, loo. Thorn V. City Hice .AFills. 22. Tiiornbury v, Jones, !»2. Thornton v. Finch, I'.il. Thurlow v. Maokeson, 127, 12.s, 'lipton Green v. Tipt,.n M,„it, 17 177. Tomlin v. Luce, 107, Jms. Tomlinson v. (Jre«},', 22.",. Tommey v. White, 102. I'ookc V. Newman, 200. T(jrrance v. Winterbottom, (is. Townsend V. Wilson, 4'J. Trecothick's Case 22."). Tripp V. Ide, isd. Triinlestou v. Hamill, iHl. Trust \ Loan Co. v. IJoulton, lx|. Trust A Loan Co. v. Uuttan, !.-,(;. Turner v. Handcock. H. 2;f7. Tyler v. Herri n;,', r,l, Tyler V. Hinton. 23. V. 1.-. Vail V. Jacoi)s. 1 12. Van I'.er^en v. Demarest, -ilit). Nau^^han v. Marable, 202. !;:i; i -,%. ^. -f^ IMAGE EVALUATION TEST TARGET (MT-3) 1.0 I.I m 11^ »56 2.2 IIIIIM I' IIIM ^ 1.8 !.25 1.4 1.6 -m 6" — ^ V] <^ /i % /^ y y;^ Photographic Sciences Corporation 23 WE«T MAIN STREET WEBSTER, N.Y. 14580 (716) 872-4503 BSuM .<^. %^ tfi ^ k >356 TABLE OF CASES. W, Walford v. Walford, 107. Wallbridge v. Trust and Loan Co., •2.37. Waller v. Arnold, 20. Wallis, In re, 229. Walton V. Bernard, ICy. Warner v. Jacob, 129, 137. Washington v. Bassett, 90. Waters v. Shade, 07. Watkins v. McKellar, ? 3^. Watson V. Marston, ' ., Watts, In re, 224. Weld V. Rees, 90. Wells V. TLUsf A Lof.n C- 1 ?'S 220, 227. Welsh V. Cooley, 93, 107. Western Canada v. Court, If, 196, West London C. Bank v. Reliance 184. Whitconib v. Minchin, 100. Wintield v. Fowlie, 248. Whitehead v.WhiLJiurst, 104. Whitworth v. Rhodes, 99, 20:t. 'I he references are to sectioiiH. Wifif^in V. Heywood. 191. Wilkes V Saunion, 167. Wilkins v. McGehie, 30. Williams v. Sorrell, 99. Willis V. Levatt, 11. Wilmer v. Atlanta, 122. Wilson V. Troup, 28. Wolf V. Vandezee, 137. Wolf! V. Ward, 112. Wood V. Murton, 12o. Woodruff V. Mills, 166. Woodward v. .Jewell, 201. Woolsey v. Colmar, 3.5. Worley v. Naylor, 90. Y. Young V. Roberts, 49. z. Zable V. Masonic Sav. Bank, 102. GENERAL INDEX. P i! The ReferenceH are to Serthois.] GENERAL INDEX. References are to sections. ' ABORTIVE PROCEEDINGS, 217 ABSOLUTE DEED— apparently construed as morlj^age, 3a danger of using as a security, 39 notice to purchaser, of equity- under, 39 what is good notice, 39 ACCELERATION— of the principal, 23 convenience of, 23 clause, 23, 260e not absolutely necessary, 23 not a penalty, 23 optional with mortgagee, 23 mortgagee bound by option, 23 attempt to call in principal without clause, 2;! as an effect of notice of sale, 99 effect of, on application of proceeds, 171 ACCOUNT— see Just Allowances, Improvements, Profit Charges. Mortgages (second). Wilful Default, Costs ACKNOWLEDGMENT— under Statute of Limitations, 202 ACQUIESCENCE—,: by mortgagor, effect of, 159 ACTION— see Injunction, Redemption, etc. ADJOURNMENT— see Postponement 8()0 /A7>/';.\. lieferenci'ii are to sections. ADMINISTRATION— to Mortgagor, costs of taking out, 17() ADMINISTRATOR— as assign of mortgagee, 48 with will annexed, power in, to mortgage, etc., 2fi3b, 2(58c ADVERTISEMENT— {see also Publication) of sale not compulsory, 10i> but very usual, 110 contents of. 111 name of vendors omitted, ill brief description. 111 setting out advantages of property. 111 interval between, and sale, 113 precedent of, 278 declaration as to insertion, 114 ' precedent of declaration of insertion, 281 costs of, 17() AGREEMENT— with purchaser, precedents of, 288, 238a, 288b ALLOWANCE— see Just, Improvements, Profit Charges APPLICATION— of proceeds of sale, statutory directions as to, 170 principles of, 171 effect of acceleration upon, 171 APPURTENANCES— what, go under conveyance, 248 ASSIGNEES- of insolvent, entitled to notice, 68 ASSIGNMENT— of mortgage, 28 equitable, 28 inoperative, 28 absolute, 28 collateral, 28 for purposes of collection, 28 during proceedings, effect of, 94 right of person redeeming to, 100, 255 ASSIGNS— of mortgagee, power must be reserved to, 47, 50 precedent of clause reserving to, 277 power otherwise personal to mortgagee, 47 administrators of mortgagee are, 48 M ISDKX. Ue/ercncen are to mtioiis. A8SIGNS-Co«^-««frf. administrators of an assignee, 48 devisee is an assign by will, 48 survivor of joint mortgagees, 48 power passes to, if mortgagor joins in the assignment. 49 trustees do not convey as assigns, 50 effect of exclusion from Short Forms Act, 50 effect of statutes, as to, 50 sale by, to be questioned within 2 years, 50, 253 statenunt of mortgage account by. 25.5 of mortgagor, 59, 61, 63 et sen ATTESTATION— rights of purchaser as to, 248 • ATTORNEY- •w Power of, Solicitor AUCTION— sale by, or private contract, 135 reasons for holding, 13G fairness of, xee Fairness provisions as to, of R. S. 0. 1887, c 100 AUCTIONEER- who may act, 10/';a'. Itcfereiiccs me to >^i'cti()ii>i. HROKER— acting,' for botli mortgagor and mortgagee, 1;>2 BUllDEN— of proof of validity of sale, 130 BUSINESS- depression no ground for inju iction, iJOJ BUYING— up second mortgage, 134 CAPACITY— to exercise power, 27 infants, 27 lunatics, 27 to bid or purchase, 2.S7 and Chapter VIII CASH— see " Credit " CESTUIS QUE TRUSTENT- when entitled to notice, 72 CHARITY— purchase by, 153 CHEQUE— for deposit, 124 effect of dishonor, 12o CLOUD— on title, 200 COMMISSION TO AGENT— allowed in mortgagee's account, 17ti, (sea " Prolit Charges'") COMMITTEE— of lunatic, conveyance bv, 240 COMMON— form of power in England, 32 (XJMMON LAW— power of sale not necessary at, 12 COMPANY— sale to one's own, 162 CONCEALMENT— of instruments, 253 CONCURRENCE OF MORTGAGOR- not necessary to sale, 3, 4 effect of, 143 CONCURRENCE— of notice with default, !)7, i)S ISDEX. SGH References are to sections. CONDITIONS OF SALE- depreciatory, 117, 118, 120, 260 rescission clause, 118 not an absolute clause. 119 Si V. c. 11), 8. 8 : 120 precedent of clause allowing special, 26!) precedeuts of, 286, 287, 287a CONDUCT OF SALE— see " Management " CONSOLIDATION OF MORTGAGES- notice does not effect, 101 CONSTRUCTION— of powers, 29 strict construction, 29 limit to strict rule, 29 effect of death or disability on, 30 obvious errors, 31 as between provisions in same instrument 31 of powers under Short Forms Act, see Short CONTINUANCE OF POWER— effect of sub-mortgage on, 24 prior invalid exercise, 24 CONVEYANCE- by committee of lunatic, 27, 145 by (real) mortgagee as if actual owner, 38 CONVEYANCE- meaning of, under R. S. O. 1887, c. 100 : 247 248 under c. 102 : 254 ' to purchaser, 141 to whom taken, 141 recitals in, 142 concurrence of mortgagor in, 143 precedent of, 289 to oneself, 247 to husband or wife, 247 implied covenants in, 249 by direction of beneficial owner, 249 when covenant not implied in 249 CORRESPONDENCE— costs of, with mortgagor, 220 with surety, 220 COSTS- a sufficient charge to support exercise of power 26 unascertained, 21) 8()4 )}i' LSDIX. Reforencex are tn sent ions. COSTH -Continued. mortjjiijjee entitled to add, to his security, 215 nature of such rij»ht, '21(5 of successful sale proceedings. 217 of abortive sale proceedings, 217 of preparation of mortgage, 21fJ of solicitor acting for mortgagor and lending the money, 218 of search of title, 21{> practice of lenders, as to preliminary, 215) in relation to the debt, 220 of correspondence witli mortgagor, 220 with surety, 220 in relation to the property, 221 of proceedings to protect security, 222 incurred at request of mortgagor, 221 of successful litigation, 222 of successful appeals, 222 of unsuccessful litigation, 228 where partially successful, 22.'} action for specific performance, 22.H unneccKsarily onerous, 22H in action to redeem, 224 to mortgagee if balance in his favor, 224 rarely against him, 225 when against him, 225 where tender or payment, 22(') in action for account, 227 when fraud improperly alleged, 228 in cases of improvements under mistake, 2()2 of solicitor-mortgagee, see Solicitor under Land Titles Act, 254 of conveyances under Short Forms Acts, 26(» taxation of, xee Taxation . precedent of bill of, 300 COURT— mortgages settled by, 7 payment into, sec " Payment " COVENANT— action on, after foreclosure and sale, 11 relation to power of sale, 240, 242 none for costs of abortive sale, 240 implied in conveyances by mortgagees, 249 by direction of beneficial owner, 24',> when not implied, 240 :K ISDKX. MG5 llcferencc* are to .n'ctioiis. COWEH ANT— Continued. who may on force, 249 variation of, 'JID im))iie(l in mortj^aijes, '25'A in mortf^iif«os of leiselioitler, 253 are joint and geveral, 2.55a CRANWOllTil'S ACT- Lord, «<-« R. 8. O. 1887, c. 102 CREDIT— sales on, iiow far allowable, 127 limits of discretion, 128 distinguisliod from incomplete deal, 128 CREDITORS— ■lee Execution creditors DAMAGES— for irrejiular or wron<,'ful sale, 14iJ, 2i:i for wronj^ful injunction, 207 DEBT— costs in relation to the, 220 DEBTS— charge of, implies power to mortgaf^e, 2(i3a DECLARATIONS— see Forms DEED— to nu-rtgagee— purchaser, form of, 168 of mortgage, preparation of, 218 see Conveyance DEFAULT— a condition of exercise of power, 21 not necessary to possession, 21 notice given before, void, 21 exception to necessity of, 22 nmst be in terms of instrument, 22 waiver of, 102 payment after, 258 concurrently with notice, 97, !)8 wilful, see Wilful declaration setting forth, precedent of, 285 DEMAND— of payment 80 DEPOSIT, 123 usually taken, 123 ten per cent., 123 cheque for, 125, 126 with solicitor, 120 :iO() n " i» 1 W IXDFX. liffci'eiiri's arc to Kfctioiis. DEPIIKCIATOHY- coiulitions, 117, llH, 120, 'Jfi')!) DESCIUI'TIONS- ill notice, N2 DIHABILITY^ Kce Incapacity DISCHARGE— of iiiort>iftt,'e, 255a, 255h, 2()H receipt of mnit},'a«ee, effectual. 255b ' DISCONTINUANCE— of proceeding's, W DISHONOR— of che(jue for deposit, 125 DI8TRAIN- rifjht to, by niortj^agee, 255b DISTRESS— claiisc, 2)i0d DOUBT— power must be free from, 24 DOWER— (.vet' Wife) in surplus, 108, 2(35 in what portion of surplus, 198 mode of application of surplus to, l!t8 bar of, 2(;0a, 205 in equitable estates, 2()5 where husband a ri^ht of entry, 203 not out oi land in state of nature. 205 EARLIER— provision controls later one, 31 EJECTMENT— right of, how effected by power of sale, 241. 242 ELDON— Lord, his opinion of powers of sale, 5 ENEMIES— of the State, absence of mortgagor with, 30 ENTRY— question as to necessity for, 51 under Short Forms Act, 51 according to the strict construction, 52 made be made at time of sale, 52 how far it affects power of sale, 241 EQUITY— power necessary in, 12 IM i\i)i:.\. mi Hi'/fnucfs are (n tierti»a>,'fe, 25^) notice purporting to soil, 8M precedent of, releaHe of, 2',l(; ESTOPPEL— of mort^iigor, 101 EXECUTION CREDITORS ~ of mort^a^or entitled to notice. (IK of subseqnent purchaser, 70 of niortga<,'ee, 7(i rif^hts of, aa to surplus, 191 gariiislnnent by, l!»l EXECUTION OF POWERS- niode of, 'i'lO EXEC J I RS— may mortgage etc , 2(i:^a, 'JlWJb i:XECUTORS OF MORTGAGEE (see "assigns") may assign, '2o,5 may convey in pursuance of £„ile agreement EXCLUSION OF POWERS OF SALE- precedent, 272 EX PARTE— injunction granted, 207 EXPEXSES- reasonable, allowed, 174, 170 EXTENSION— of mortgage, 285b assent to, by second mortgagee, 28')c FAIRNESS OF SALE- onus of proving, ISO arrangements by purchaser, 131, l8-_> vendor, 18;} FALSIFICATION- of pedigree, 25'n FEE SIMPLE— words necessary to limit under R. S. O. 1887. c 100, s. 4 : FINES ON LEASEHOLD PROPERTY— allowed in mortgagee's account, 17(i 2(;;k :M)H ISDHX. Ui'/u'einu't iiri' to xcctioiia. KOUHfJLOSURJ::- roiation of power of Halo to, 238 Ijad, may be turned into f,'ood sale, 'i'AH not governed by conciitioiiH of power of sale, 'i:v.) I'OUMS OF roWKR— discussion of various, :{2 FORMS— (precedentH), 207, .'WO power clauseH, 2(;7 modes of givinj,' notice, 'Jfl? address of notice provided for, •2»17 non-infjuiry clause, '2(17, 2(iH remedy of mortj^agor, '2(iH allowinf,' special conditions of sale, 2{V.) with or without notice, 270 without notice in case of insolvency, 271 exclusion of, 272 reservation to iissij^Mis, 27;< stipulation for pro/it costs, 271 express covenant as to expenses of mortgaj^ee. 274a in mortj^ages of leaseholds, 274b notice of sale, common form, 27;> by publication, 270 order allowiiit,' "further proceedings," 277 indorsement of sjrvice of lioticc, 277a acknowledgment of service, 277b advertisement of sale, 27H declaration of service of notice, 27!) posting up notice, 2S0 insertion of advertisement, 2hI notifying interested persons, 2.s2 I)ill-poster, liH.'f auctioneer, 281 default, 2.sr) agreement to postponu sale, -inryx lor extension, 2H.">b ,.^. , . '^^Hcnt to, of second mortgagee, 2H.JC conditions of sale, 'im oh- t inding conditions of court, 2mi f-enera! conditions, 2H7, 287a (1) Higiiest bidder, 287 . (2) Reserve price, 287 ('A) Minimum advance. 2H7 ( I ) I'm ciiaser to sign agreement, 2<7 ISDKX. mu lieferencex are to sectionn, FOIUIH—Conliniu'il. general conditions, (5) Completion uf piirclmsc, 287 (»)) PosHeHsion, 2H7 (7) Search of title, 2H7ii (H) Time for objections, 287u {'.)} Power to rescinrl, 287a (10; Errors in descriptions, 287a (11) Conveyance, 287a (12) Power to resell on default, 287a at^reen:ent with purchaser, 2H8, 288a, 288b notice to complete, 288c, 288d purchase deed (Short Foi-ms Act), 28!) covenanl as to validity of mortf^aye. ..^8'Ja fuller recital of advertisement, 28!)b mortga{«e back, recital in, 2y0 conveyance of leaseholds under power, 2iil by buildinj^ society, 2!)2 notice to tenant, by mortf^a<;ee, 2'J3 by purchaser, 2!)1 quit claim deed, mortgagor to purchaser, 2'.»r> release of equity, 2!)f] (••onveyance by mortgagor and mortgagee, 2ii7 recital in same, 298 similar conveyance, mortgage to be kept on foot, 2<.), 03 u e of " heirs," " heirs of the body, etc.." 247 HUSBAND- conveyance to by wife, 247 II.P.S.— 24 870 ISDEX. |4' Ki'/creiireK are to xectiaiiK. IMPLICATION— power resulting from necessary, 32 IMPLIED— power formerly not, in mortgage, 7 power, by Btatute R. S. O. 1HH7, c. Ifi : i). 10, H.i, -Jof;, 258, ^n'.i provisions for notice under, iiH service under, iJiJ equitable mortgages included, iiH c. 100, s. 17 : 249 c. IIG : Land Titles Act, 2()4. covenants, 249, 255 IMPLIED RESERVATION— of express power, none in subsequent deeds, Hi) IMPROVEMENTS— lasting (by mortgagee). 177 general rule against, 177 when allowed, statement by Jesse), M.R., 177 conditions of in([uiry as to, 178 what must be shown, 178 must not in. prove mortgagor out of his property, 179 by second mortgagee, 1 80 no allowance for, 180 under mistake of title. 252 INADEQUACY— «('(■ Price INCAP.ACITY— f-er\ ice on persons under, 95 INCUMBRANCE— sales ires from R. S. O. 1887, c. 100 : 248 implied covenant against by mortgagee sellin.', 24') meaning of, umler c. 102 : 2"4 short form of covenants against, 2f)0b, 2ri0c INFANCY- of mortgagor (or his heirs, etc.) does not affect power, 80 INFANTS- conveyances by, 2G5a none contrary to dtviae, 2()5a procedure as to, 2()5a application of piocteds, 2t'ija i IXDKX. 371 References are to nectiuus INJUNCTION - against trustee wliere not aj(ainst niortc/afiee. 15 to restrain sale not a matter of course, 1 how far clause goes, 150 express knowledge, 151 solicitor acting for both parties, 152 broker acting for two parties, 152 IRREVOCABLE— power is, 30 JOINT— account, advance on, 255 JUDGMENT— creditors, see Execution creditors JUST— allowances, 174 costs of taking possession, 17(5 costs of advertijing, 176 insurance premiums (?), 176, 260d repairs (necessary) 17(5, 2r)0d rents and fines on leaseholds, 176, 2()0d costs of taking out administration, 176 commission to real estate agent, 176 costs of appointing receiver, etc., 176 KNOWLEDGE— of irregularity, effect of, 150. 151 LAND— Titles Act, power of sale under, 264 costs under, 264 implied covenants in rr.Drtgages nnder, 264 meaning of, under R. S. O. 1887, c. 100 : 247 under c. 102 : 254 under c. 107 : 260 IXDEX. lie/erences arc to nectionx. LEASES— registration of, 263 LEASEHOLDS- covenants implied in mortgages of, 25;{ precedent of, conveyance of, 291 LIEN— for improvements, 252 LIFE— estate for, words necessary to limit, 247 LIMITATION— words of, not necessary, 247 LITIGATION— costs of successful, 222 unsuccessful, 223 partially successful, 223 LOSS— sale at a, measure of dama-Jes, 188 LOTS— sale by, 121, 122 LUMP— sales, 121, 122 LUNATIC— mortgagee, 27, 144, 24() mortgagor, 30 MANAGEMENT— of sale, 103-105 general principles, 103 trusteeship, 103 mortgagee not a " dry trustee," 104 duty to act as prudent owner, 105 and prevent sacrifice, 105 MEASURE — of damages, for mistake of mort<'aL'ee. 188 MERGER, 255a MISTAKEN PAYMENT- to tenant for life, 250 MODIFIf'ATIONS— of power after granting thereof, 30 MONEY— scarcity of, no ground for injunction, 200 *' MONTH"- cue, for " months," 41 calendar, 90, 2()oc 873 874 ISDEX. References are to .sections, MORTGAGE— should be produced at time of sale, 76 costs of preparing, 218 for balance of purchase money, nee Credit precedent for recital in, 290 meiinin},' of, under R. S. O. 1887, c. 100 : 247 under c. 102 : 2")4 under c. 107: 200 account pi'oved by statement of assignee, 254 power to, under will, 2(J3a MORTGAGEE— meaning of, under R. S. O. 1887, c. 100 : 247 under c. 102, 2o4 duty to act as prudent owner, ;50, 104 trusteeship, nee Trustee after assignment of mortgage not entitled to notice, 77 acts of, affecting of sale, 188 buying up second mortgage, 184 may not purchase at sale, reason of rule, 20, 158 acquiescence of mortgagor in purchase by, 15'.» scope of rule against purchase, KJO, 108 solicitors and attorneys, 101 sale to one's company, l(i2 stepping into shoes of third party, 103 position of, as purchaser, 104 leave to, to bid, 105 intei'pretation of his bid, 100 liability to surety, 75 limit to rule against, 107 form of deed to, 108, 247 purchase from sheriff, 101 no right to surplus, 1(»2 or of retainer against, l'.(8 covenant implied in conveyance by, 24!) purchase of equity by, effect of, 255a executors of, may assign, etc., 255a, 203 MORTGAGEE (SECOND)— purchase by, of first mortgage, 16 bought up by first mortgagee, 134 entitled to notice of sale, 00 sale to, 154, 155 improvements by, xee Improvements right to surplus, 188 right to fair dealing on part of first mortgagee, 184 right to sell subject to first, 180 '*? i.\nj:.\. ■) i J Iii'/(Tciire.i an' to ■■."> power without, deemed oppressive, ').", in mortgage to solicitor, oO effect of, where none required, 56 parol voluntary promise to give, 56 power witiiout, alternative form, 57 precedent of alternative form, 270, 271 mode of. left to discretion, 58 public or actual, o>i M 876 ISDKX. References are to .^ectioiiH. NOTICE OF HXLVl—Vonti lined. indioated mode must be followed, oH and none other required, 5M to whom fjiven, 5!) heirs or assij^ns, 5'.) all interested in equity, r>!» how ascertained, 60 searches, (10 particular classes, (il mortj,'aKor, (il where he has assij^ned, CI several mortf^agors, (51 reason of notice, 02 assigns of mortgagor, C3 heirs or assigns, 03 subsequent purchaser, 04 sale by mortgagee and mortgagor, ()4 severance of equity, 05 subsequent mortgagee, Oli Hoole V. Bmith, (id tenant of mortgagor, 07 reversioner, 07 assignees of insolvent, OS execution creditors, 00 what creditors entitled, O'J execution creditors of subsequent purchaser 70 heirs, representatives, devisees, 71 shall representative include the heir ? 71 centnis que trustent, 72 trustees, 72 wife of mortgagor, 73, 74 wife of purchaser, 73, 71 principal and surety, 75 mortgagee's liability to surety, 75 judgment creditors of mortgagee, 70 classes not entitled lo notice, 77 mortgagee who has assigned, 77 representative of tenant for life, 77 trustee during minority, 77 optional cases, 78 none where claims paramount to mortgagor, 70 form and contents of Notice, 80 precedents of, 275, 270 ordinary form of, 80 demand of amount due, 80 ISDKX. lief ere Hces are to iiectioim. NOTICE OF B^LK-Voutiniied. vendors should be stated, 81 description of property, 82 intention to sell should be clear, Hli purporting to sell equity, 8;^ to wlio:n addressed, 84 proviso as to address, 84 manifest omissions, 85 beginninj^ proceedings over, 03 assignment during notice, effect of, 94 concurrently with default, 1>7 where not allowed, 98 effect of, 99 acceleration and tender after, 99 right to demand re-conveyance, 100 and assignment, 100 no effect on consolidation, 101 waiver of, 102 mortgagor may waive as against himself, 102 but not as against assigns, 102 mortgagee may waive, 102 lack of, no ground for injunction, 200 NOTICE— by mortgagee selling under distress, 255b of right to redeem, to purchaser of land, 39 of time and placs of auction, IIG declaration as to, precedent, 282 estoppel by, 116 * to purchaser, of irregularity, 14(3—150 to purchaser to complete, 285c to vendor to conTplete. 285d to tenant by mortgagee, 298 to tenant by purchaser, 294 OMISSIONS— manifest in Notice, 85 ONEROUS— costs unnecessarily, 223 OPPRESSION- powers not invalid because they mav be used for, 245 OPPRESSIVE- power without notice, 42, 55 ORDER— allowing " further proceedings," 203, 242, 243, 257. precedent of, 277 Hll :J7H I /.v/>i'cfi'oii)i. PliECEDENTS— see " Forms " FHICE- iniuleijuacy of, l;i7, :i")3 how far a -,'rouiul for upaettin^,' sale, 137 to^'ether witli otlier circumstances, 188 PUINCIPAL- iicceleration of, 2'ii application of proceeds of sale to, ) :0, 171 and surety entitled to notice, 7.3 I'UINTEI) WOKDS- entitled to less respect r.lnin written ones, 31 rUIOHITIKS amoiit; puisne incumbrancers, li)0 PRIVATE CONTRACTS— sale by, 135 K'enerally optional, 135 before auction attempted, 13(i I'ROCEEDS- xce " Application " PROCEEDIXGS- •-■t'c Furtlier, Order, Costs, etc. PROFIT CHARGES- not allowetl to mortgagee, 181 can he stipulate for, 1S2 costs ■lee Solicitor — Mortgagee precedent of, stipulation for, 174 PROPERTY— costs incurred in relation to, 221 meaning of, under R. S. O. 1^87, c. 100: 247 under c. 102 : 251 PRUDENT OWNER- duty of mortgagee to act as, 20 PUBLICATION— notice by, 90 PUFFER— definition of, 251 PUISNE INCUMBRANCER— see Mortgagee (Second) ■ PURCHASE- by mortgagee, .wc Mortgagee of reversion, 253 :}7I^ :M) ISDKX. liffereiiecti are to m'ctionn. rrucriASHR- nieaiiiiiK of, under U. S. O. 18S7, c. 100 : 247 u; for value without notice, 253 specific performance a^jainst, 3, 4 rij,'lits of, ns to attestation of purchase-deed, 2 IH QUEHTIONING SALES— time for, 258 QUIT CLAIM- to purchaser, 295 RECEIPTS— of mortji!a<,'ee effectual di8charf,'es, 255, 2(VA of mortgaged property when allowed in mortoagee's account, 17!) how far demise to affects power, 241 in body of deed, 248 RECITALS- in conveyance to purchaser, 142 l)recedent of, 28'J RECONVEYANCE - right to, 100, 255 of unsold portions, 200d REDEMISE CLAUSE, 2G0e REDEMPTION- action, pendency of, its effect, 201 as a remedy of mortgagor, 208 discretion of courts as to, 210 how exercised, 211, 212 costs of action, 224, 22(i clause, 2(i0a REGISTRATION— of leases, 2(13 RELEASE— of power, 250 of part of land charged, 251 tc mortgagee not a merger, 255a clause in mortgage, 2G0c of equity, 29() /A7>/;.Y. :JH1 /ic/iTt'Hct'w (/re /u ^eclioun, UKMEDY— of im)rtf,'iiuec (Cliii)). XII) relation of iwwer of sale to othern, 287 see Foreclosure, Covenant, etc. of inort;^iiKor for sale without notice, 1-19 aj^ainst inort^anee-iiurchaser, lOi scf Injunction, Redemption, etc. RENTS OF LEASEHOLD PROPERTY— allowetl in account, 17<), '2(10(1 REPAIRS- necessftry, allowed in account, 17C, '2G0d substantial, see Improvements RESERVE— sale without, 251 RESTRAINING ORDER— see Injunction RESTRICTION- on proceedings. Chap. 102, R. S, O. 1887 : 242 where not a requisite, 242 act retrospective, 24H REVERSIONER— entitled to notice, 0(3 REVERSIONS— purchase of, 253 SALE— at a loss, measure of damages, 188 SCALE OF TAXATION— see Taxation SEARCHES- a precedent to sale proceedings, GO of title, costs of, 21!} SECURITY— proceedings to protect, 221 SELF— conveyance to, 247 SERVICE OF NOTICE-, nnder Chap. 102, R. S. O. 1887 : 'J6, 33 prescribed mode must be followed, 86 rule in Bartlett v. Jull, 86 under Short Forms Act, 267, 87 three modes of service, 87 posting up, how far good, 88 :isi> INDEX. ini licfeyeiict's are to sectio)!:'.. f^EIlVICE OF NOTICE-(',)/,^«,„v;. notice usually i)osted as of course, HH by publication, !I0 when time runs from, !I0 date of paper, 'Jl what paper, 92 on persons under incapacity, 8(J, 0.") declaration of service, form, 27!t SET OFF— nu injunction to allow, 200 SETTING ASIDE SALE- a remedy of mortga<,'or, 20^^ grounds for, 20',t lack of notice, 20!( discretion in court as to, 211 may put conditions on, 211 or alto^'ether remit to other remedy, 212 SHERIFF— purchase by mortj^agee froni. Ifift SHORT FORMS - Act. (t, 10 clause U (schedule B), -10 directions for use of, 40 interpretation, 41 '• one month," 41 third dii-ection, 42 omission of provision for notice, 42 symbolical meaning of short clauses, 43 additions to the short forms, 4o principles of construction, 40 effects of exclusion, 47, oO assigns of mortgagee. 48 exceptions to rule as to assigns, 49 trustees may sell not as assigns, 4'.) necessity for en*^ry, 51 suggestions for drawing powers, o3 internal qualiticiitions to be avoided, '^4 precoilents oi additions to Short Fofms, 21)7 principles of remuneration for drafting under, 2(>tl SOLICITOR— power of sale to, by client, with no provision for notice, 55 agreement with client as tj remuneration, 266 acting for both parties, 152 purchase by, under power, 161 ixi>i:.\. }]h:\ liet'ervHiis mi to arrtioii--'. SOLICITOR -(■,.//?/// »<'1 remedy a.i,'ainst in such case, l'.t4 mort,!^af;ee, preparin.u mortj,'ase deed. '21s costs of, 2 .".I out of pojket, nut lu-otit costs, 'J21» rule a general one, '2;i0 can lie stipulate for profit costs .' u'i^O precedent of stipulation, 271 see Costs, Taxation, etc. SPECIFIC PEKFOHM.ANCE- a>,'ainst purcliaser. Hi, 140, 0.0 of a'jrecnients for mort-^a.^es with power of sale, unsuccessful action for, costs of, 233 STATUTES— K. S. O. 1.SS7, c. ol : 27, 144, 24t) E. S. O. 1SS7. e. 100: 211, 247 R. S. O. 1.SS7, c 102: '.t, 10, 33, "tC, 140, l!)."), 2:>l--2r,l li. S. O. 18H7, c. 107 (Short Forms Act) R. S. O. 18S7. c, 1 10 : 2(i3c J\. S. O. 1887. c. Ill (Stat of Limitations) E, S. O. 1887, c. 114 : 2(;3 R. S. O. 1887, c. lit) : 2(;4 R. S. O. 18.S7, c. 133 : 2(]o R. S. O. 1H87, c. 137 : 27 R. H. O. 1887, c. 147 : 231. 232, 2(;,5c ol V. c. lo : '.», 10. 258 ".3 V. c. 27 : '.». 10, 25'.» 54 V. c. lit: 117, 120, 2(j(j STATUTE— of limitations. 201. •>()2 as against trustee. 2t)5b limit of time to e.xercise power. 25 when running a^'ainst inortuatiue. 25. '2(i2 niort.ua.4or, 25 })urcliaser, 25 as a^'ainst surplus. r.i7 SUBSEQUENT INCCMnRANCERS- xee Morti,'a<,'ee (second) proceedings of mortgagor, effect on power. 214 purchaser, .lec Purchaser SUCCESSFUL PROCEEDINGS- SURETY - entitled to notice, 75 liability of mort-agee to, 75 lire Costs :-i84 L\1>KX. Befcrences are to sectiona. HUltPLUS— trusteeship of, in mortgagee, 18 rij^lit of second mortgagee to, 75 meaning of, 1!(2 mortgagee no right to, li)2 or of retainer against, 193 interest on, 193 payment of, on advice of solicitor, 194 remedy against solicitor, 194 to whom payable, 195 when payable to owner of eijuity, 195 (ti) payment of, into court, 190 statute of limitations applied to, 197 SURVIVORS— of trustees, etc., powers continued in, 2(53u, 2(j3c TAIL— estates in, words necessary to limit, 247 TAXATION— R. S. O. 1887, c. 147, ss. 13 : 52 • • " third party," his right to, 231, 266 discussion of, c. 147, s. 42 : 231, 266 what are " special circumstances," 232, 2(50 under chap. 102 : 233 bill to be delivered, 265c effect of delivery of bill, 234, 266 scale of 235, 266 nature of, right of, 236 TAXES— sums paid for, a tir.st chai-go on proceeds, 2("0d TENANT FOR LIFE— representative of, not entitled to notice of sale. 77 of mortgagor entitled, 6(5 mistaken payment to, 250 TJONDER- effect of, 99 as a ground for injunction, 203 what is sufficient, 99, 203 TERMS OF POWER- must be observed, 13 rule extended to trustees, 13 TERMS OF SALE, 123 ef^y^. THIRD PARTY— mortgagee purchasing through, 160, 163 INDEX. References are to sections. TIME OF SALE-106, 112, 113 TITLE OF PURCHASER, 139 cloud on, 200 deeds, power of mortgagor to inspect, 255 covenant to produce, 260b TORRENS SYSTEM— see Land Titles Act TRUST— deed favored by courts, 34 in Virginia, 34 reasons for preference, 35 disadvantages, 36 to mortgagor, 36 to trustee, 36 to mortgagee, 36 TRUSTEE— meaning of, under " The Trustee Act, 18{ll," 26ob lending more than authorized amount, 26ob actions against, 265b mortgagee who is also a, rights of, 15 how far entitled to notice, 72 TRUSTEESHIP OF MORTGAGE— result of equitable necessity of power, 13 definition of, 14 instructions as to, 15-18 not equally enforceable, 15 not an express trustee, 15 trustee restrained when mortgagee not, 15 conflict of duty with interest, 15 ground of 17 locus of, 18 a figure of speech, 19 a secondary matter, 19 true principle, 20, 105 not a "dry trustee," 104 UNDERVALUE— fraudulent, 137, 138 in purchases of reversions, 263 UNSKILFUL SURVEY, 252 385 H.p.s. — 25 886 INDEX. References are to KfrtiouK. . VALIDITY— of powers orif^inally doubted, 1 established, 3 VALUE— l)urchaser for, 2o3 VERMONT— form of, power used in, 31 VIRGINIA— form of power used in, 34 WAIVER- of notice by mortf:a>,'or, 101 not as af,'ainst his assiyns, 101 by mortgaf^ee, 101 of default, by mortgagee, 101 WEATHER— bad, no ground for injunction, 200 WIFE— of mortgagor entitled to notice, 73 of subsequent purchaser not, 74 conveyance to, by husband, 247, 248 {see Dower) WILFUL— dffault, decree as of course against mortgagee, 10 explanation of doctrine, IH'J WRITTEN - words entitled to more weight than printed ones, 31 P k- X- ji JONES ON THE TOBBENS SYSTEM of Land Transfer. A Praotioal Treatiaeon •• The Land Titles Act of 1886, Ontario," and " The Bbnl Property Act of 1885,' Manitoba. Embraning all the English, Australian and Canadian oases. By H. C. Jones, M.A. Cloth, |4.60 ; flalfoalf, 16.00. KEHOE'S GHOSES IN ACTION. 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