UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY THE LAW OF MORTGAGES OF REAL ESTATE INCLUDING MORTGAGES UNDER THE LAND TITLES SYSTEM. BY JOHN DELATRE FALCONBRIDGE, M.A., LL.B. OF OSGOODE HALL, BARRISTER-AT-LAW. ONE OF THE LECTURERS TO THE LAW SOCIETY OF UPPER CANADA. LECTURER IN INTERNATIONAL LAW, UNIVERSITY OF TORONTO. AUTHOR OF "BANKING AND BILLS OF EXCHANGE." TORONTO CANADA LAW BOOK COMPANY LIMITED 1919 T Copyright (Canada), 1919, by JOHN DELATRE FALCONBRIDGE PREFACE This book is in part a product of the lectures which I have given at Osgoode Hall since the year 1909, when the Law Society of Upper Canada appointed me lecturer in equity in succession to the late Mr. Alfred H. Marsh, K.C. Some of the features of the book are due to the fact that it is intended for the use of students as well as practitioners. I have had the advantage of using, in addition to Mr. Marsh's notes, the material contained in the Treatise on the Law of Mortgages of Real Estate, published in 1899, by Mr. Edwin Bell, the present secretary of the Law Society, and the late Mr. Herbert L. Dunn. I have, however, departed so widely from the arrangement adopted by the a*uthors of that work and have to such an extent rewritten and added to their material that it has seemed proper, Mr. Bell being a consent- ing party, that the present book should appear under my name. The book contains references to the leading decisions in all the common law provinces. The Ontario statutory provisions relating to the subject have been quoted as a rule without abbreviation, and references have been given to the English statutes, if any, from which they are derived, so as to afford to a practitioner in another province the means of readily comparing the Ontario and English statutes with those of his own province and of judging to what extent the numerous Ontario and English decisions are applicable to his own pro- vince. It is hoped therefore that the book will be a useful guide to the law of all the provinces other than Quebec. The Ontario Registry Act is fully discussed so far as it affects the question of priorities and the law of mortgages, vi PREFACE. the registration of deeds being the system which is largely prevalent in Ontario. In the western provinces, on the other hand, the registration of deeds is not the prevalent system and in most of them the registration of titles is the exclusive system. By way of exception, therefore, the -discussion of the land titles system has been chiefly based, not on the Ontario statute, but on the statutes of Manitoba, Saskatchewan and Alberta, the provisions of the Ontario statute being referred to for the purpose of comparison. The German war, now about to be brought to a just con- clusion, has had as one of its legal results the enactment of various moratory statutes. Such statutes are in their nature of temporary importance only. They will cease to have any operation within a limited period after the restoration of peace and the decisions construing them will constitute no permanent addition to the law of contract. I have therefore relegated the Mortgagors' and Purchasers' Relief Act to the final chap- ter, and as it does not appear from practical experience that there is any reason to suppose that mortgagors or their ad- visers will overlook this statute, I have not considered it neces- sary, in the earlier parts of the book, to refer to its provisions in qualification of my statement of the remedies of mortgagees. J. D. F. Toronto, 31st December, 1918. Table of Contents Preface v Abbreviations -. xx Table of Cases xxii Corrigenda Ixxiv PART I. THE CONTRACT OF MORTGAGE. CHAPTER 1. INTRODUCTORY. 1. Ancient forms of mortgage 1 2. Welsh mortgage 4 3. Sources of modern law of mortgage 5 4. Definition of mortgage 6 5. The Conveyancing and Law of Property Act 7 6. Fraudulent and voluntary conveyances 11 CHAPTER 2. MORTGAGE AT COMMON LAW. 11 Conveyance of the legal estate 17 12. Forfeiture on breach of condition 18 13. Possession of land and title deeds 19 14. Accretions and fixtures 20 15. Capacity to make a legal mortgage 24 16. Capacity of married woman 25 17. Capacity of trustee or personal representative 27 18. Consideration 33 CHAPTER 3. LEGAL MORTGAGE IN EQUITY. 21. Mortgage regarded as security merely 36 22. Equitable right to redeem and the correlative right to foreclose 37 23. Mortgage cannot be made irredeemable 41 viii TABLE OF CONTENTS. 24. Once a mortgage always a mortgage 41 25. Stipulation for a collateral advantage 43 26. Clogging the equity of redemption 45 27. Disguised forms of mortgages 51 28. Nature of the equity of redemption 53 29. How the equity of redemption may be barred or extinguished 55 CHAPTER 4. LAW AND EQUITY IN UPPER CANADA. 31. Common law in Upper Canada 57 32. The law of mortgage 58 33. Introduction of equitable jurisdiction 61 34. Subsequent changes in the courts 64 35. The Judicature Act 66 CHAPTER 5. EQUITABLE MORTGAGES. 41. Definition of equitable mortgage 71 42. How an equitable mortgage is created 72 43. Mortgage of equitable interest 73 (1) Mortgage of an equity of redemption 73 (2) Mortgage of other equitable interest 74 44. Mortgage by instrument not sufficient to convey the legal estate 75 (1) Defect of form 75 (2) Agreement to give a mortgage 75 (3) Charge on land 76 45. Mortgage by deposit of title deeds . . . 77 46. Remedies of equitable mortgagee 80 47. Floating charge 82 CHAPTER 6. MORTGAGES OF LEASEHOLD. 51. Law of leasehold mortgages 85 52. Mortgage by assignment of unexpired term 86 53. Mortgage by sublease 90 54. Sublease with declaration of trust 90 55. Renewal of mortgaged leasehold , 91 TABLE OF CONTENTS. ix PART II. PRIORITIES. CHAPTER 7. EQUITABLE PRINCIPLES GOVERNING PRIORITIES. 61. The three equitable rules as to priorities 93 62. Rule 1. Between two equitable mortgages 94 63. Rule 2. Between first legal mortgage and second equitable mortgage 96 64. Rule 3. Between first equitable mortgage and second legal mortgage % 97 65. The equitable doctrine of notice 97 66. Constructive notice 98 67. Priority of first mortgagee unless he is estopped or the second mortgagee has the legal estate 100 68. Purchase of legal estate for value without notice. . 101 (1) Instrument concealed from mortgagee ... 102 (2) Subsequent receipt of notice 103 (3) Subsequently getting in the legal estate. . . 103 (4) Better right to call for the legal estate . . . 104 (5) Tacking 104 CHAPTER 8. THE REGISTRY ACT. 71. Registration of instruments in Ontario 106 72. Effect of not registering 109 73. Effect of registration as notice 113 74. Priority of registration 117 75. Unregistered equitable claims 119 76. Subsequent advances under prior mortgage 122 77. Effect of Registry Act on priorities 125 78. Subrogation of person paying prior mortgage .... 128 79. Mechanics liens : . . . . 130 CHAPTER 9. CONSOLIDATION AND TACKING. 81. The doctrine of consolidation 136 X TABLE OF CONTENTS. 82. The mortgages must be overdue 138 83. Effect of the transfer of the equities or of the mortgages 140 84. Case of different mortgages to one mortgagee 141 85. Case of mortgages to different mortgagees 142 86. Consolidation under the Registry Act 145 87. The doctrine of tacking and the Registry Act 147 88. So-called tacking to avoid circuity of action 149 CHAPTER 10. THE LAND TITLES ACTS. 91. Registry Acts and Land Titles Acts 151 92. Registration of deeds and registration of titles. . . . 154 93. Mortgages under the land titles system 156 94. The registered estate and its priority 162 95. Registration and priorities of mortgages 166 96. Executions and mechanics liens 169 97. Unregistered interests, notice and fraud 173 98. ' ' ' Legal " and ' ' equitable ' ' mortgages 182 99. Remedies of the mortgagee 185 PART III. PERSONS CLAIMING UNDER THE MORTGAGEE. CHAPTER 11. ASSIGNEE OF THE MORTGAGE. 101. Transfer of mortgage may include both debt and land 191 102. Assignment of mortgage debt 194 103. Notice to, or concurrence of, the mortgagor 196 104. Assignment subject to state of account 198 105. Assignment subject to equity or set off 201 106. Equity to reform or avoid mortgage 205 107. Liability of assignor to assignee 206 108. Rights and powers of assignee 208 TABLE OF CONTENTS. xi CHAPTER 12. EXECUTION CREDITORS OF THE MORTGAGEE. 111. Rights of execution creditors 211 112. Seizure of mortgage under execution, 211 113. Discharge by sheriff or bailiff 214 CHAPTER 13. PERSONS ENTITLED ON DEATH OF THE MORTGAGEE. 121. Mortgage security is personalty 216 122. Legal estate formerly devolved as realty 217 123. The Devolution of Estates Act 219 124. Discharge in case of death of mortgagee 222 125. Transmission under the Land Titles Acts 225 PART IV. PERSONS CLAIMING UNDER THE MORTGAGOR. CHAPTER 14. TRANSFEREE OF THE EQUITY OF REDEMPTION. 131. Mortgage of the equity of redemption 229 132. Absolute transfer of the equity of redemption . . . 230 133. Personal liability of mortgagor to mortgagee 233 134. Obligation of transferee to indemnify tranferor. . 234 135. Mortgagee entitled to enforce indemnity only if it is assigned to him 239 136. Mortgagee may disable himself from enforcing indemnity 241 137. Marshalling and subrogation 243 138. Case of transfer of one of two parcels subject to a common mortgage 245 139. Case of transfer to different persons of two par- cels subject to a common mortgage 246 xii TABLE OF CONTENTS. CHAPTER 15. LESSEE OF MORTGAGED LAND. 141. Distinction between leases before and after mort- gage .-. 249 142. Lease by owner prior to mortgage 250 143. Lease by mortgagor subsequent to mortgage 254 144. Statutory or contractual power to lease 257 CHAPTER 16. EXECUTION CREDITORS OF THE MORTGAGOR. 151. Rights of execution creditors 259 152. Seizure and sale of equity of redemption 261 153. Effect of seizure, sale and conveyance by sheriff. . 263 154. Who may purchase at sheriff's sale . . . 264 CHAPTER 17. PERSONS ENTITLED ON DEATH OF THE MORTGAGOR. 161. Devolution of equity of redemption 266 162. The. Devolution of Estates Act . . 268. 163. Locke King's Act 271 164. Estates of insolvent deceased persons 273 CHAPTER 18. DOWER AND CURTESY IN MORT- GAGED LAND. 171. Dower in legal estate 277 172. Dower in equity of redemption, 1834-1879 281 173. Dower in equity of redemption since llth March, 1879 282 174. Quantum of dower in equity of redemption 286 175. Bar and forfeiture of dower 291 176. Tenancy by the curtesy 29T TABLE OF CONTENTS. xiii PART V. EXTINGUISHMENT OF MORTGAGE. CHAPTER 19. DISCHARGE OR RECONVEYANCE. 181. Revesting of estate on payment of mortgage 299 182. Obligation of mortgagee to reconvey 301 183. Statutory form of discharge 303 184. Effect of discharge when registered 308 185. Discharge in case of death of mortgagee 314 186. Vesting order 317 187. Discharge under the Land Titles Acts 321 CHAPTER 20. RIGHT TO ASSIGNMENT OF MORT- GAGE. 191. Reconveyance to the person best entitled 324 192. Statutory right to assignment of mortgage instead of reconveyance 326 193. The amending statute 329 194. Priorities unaffected by the statute 330 195. Assignment on the same terms as reconveyance . . 335 196. Statute not applicable to mortgagee in possession . 336 CHAPTER 21. MERGER. 201. Merger at law and in equity * 338 202. Intention expressly declared . . . 341 203. Intention gathered from circumstances of transac- tion 342 204. Intention presumed from consideration of benefit 343 205. .Purchase with notice of subsequent charges 346 PART VI. MORTGAGE ACTIONS. CHAPTER 22. ACTION FOR POSSESSION. 211. Concurrent remedies of the mortgagee 349 212. Possession as between mortgagor and mortgagee . . 350 xiv TABLE OF CONTENTS. 213. Mortgagee's right in absence of redemise 353 214. Proviso for quiet enjoyment until default 355 215. Rights of mortgagor in possession 358 216. Rights of mortgagee against third parties 360 217. Possession under the Land Titles Acts 360 CHAPTER 23. ACTION ON THE COVENANT. 221. Personal remedy of the mortgagee 366 222. Covenant for payment 369 223. Who may sue on the covenant 372 224 Who may be sued on the covenant 373 225. When the right to sue arises 375 226. Acceleration of payment 377 227. When mortgagee is disentitled to sue 383 CHAPTER 24. ACTION FOR FORECLOSURE OR SALE. 231. The right to foreclosure or sale 388 232. Writ of summons for foreclosure 395 233. Plaintiffs in the action 399 234. Original defendants 401 (a) The mortgagor. (b) The owner of the equity of redemption. (c) The lessee of the mortgagor, (d") Personal representatives. (e) The wife or husband of the mortgagor. (f ) A surety for the mortgagor. 235. Pleadings 415 236. Interlocutory judgment 418 237. General conduct of the reference 425 238. Considering judgment and adding parties 426 239. Taking accounts and appointing day for redemp- tion 432 240. The master's report 439 241. Subsequent accounts and appointment of new day for redemption . . 442 TABLE OF CONTENTS. xv 242. Stay of action on payment of arrears 446 243. Change of state of the account 447 244. Final order of foreclosure 448 245. Action or judgment for sale 455 246. Foreclosure or sale under the Land Titles Acts. . . 466 247. Sale proceedings in the registrar's office 474 248. Foreclosure in the registrar's office 480 CHAPTER 25. ACTION FOR REDEMPTION. 251. The right to redeem 486 252. When the right arises 490 253. Notice or interest after default 493 254. Tender 496 255. Payment 500 256. Who may be plaintiffs 503 257. Who must be defendants 506 258. Writ and interlocutory judgment 509 259. Proceedings in the master's office 511 CHAPTER 26. LIMITATION OF ACTIONS. A. Personal Actions for Payment. 261. Covenant, debt and account 515 262. Disability or absence ' 517 263. Acknowledgment or part payment 518 B. Actions to recover Money out of Land. 264. Limitation as to principal 522 265. Acknowledgement or part payment 525 266. Limitation as to arrears of interest 527 267. Acknowledgment 531 C. Actions for Possession, Foreclosure or Sale. 268. Limitation prior to 1833 532 269. The Real Property Limitation Acts 534 270. Action to recover land 535 271. When the right is deemed to accrue 539 xvi TABLE OF CONTENTS. 272. Acknowledgment 545 273. Part payment 548 274. Effect of bringing action 550 275. Disabilities in case of action to recover land 553 276. Extinguishment of right and title 555 D. Actions for Redemption. 277. Limitation if mortgagee in possession 557 278. Time not extended by reason of disability 559 279. Nature of possession of mortgagee 561 280. Possession of part of mortgaged land 564 281. Acknowledgment of title by mortgagee 565 E. The Land Titles Act. 282. Possession adverse to registered title 568 PART VH. MORTGAGE ACCOUNTS. CHAPTER 27. ACCOUNTING BETWEEN MORTGAGOR AND MORTGAGEE. 291. Right of mortgagor to an account 573 292. Taking of mortgage account 574 293. Items included in the account 575 294. Accounting by mortgagor in possession 577 295. Waste by mortgagor in possession 577 CHAPTER 28. MORTGAGEE IN POSSESSION. 301. When mortgagee is deemed to be in possession. . . 580 302. Rights of mortgagee in possession ' . 582 303. Right to reimbursement for expenses incurred . . . 584 304. Obligations of mortgagee in possession 588 305. Liability for occupation rent 589 306. Liability for rents and profits 591 307. Liability for waste or deterioration 594 308. Manner of taking accounts 595 TABLE OF CONTENTS. xvii CHAPTER 29. INTEREST. 311. When interest is payable 599 312. Rate of interest until maturity 600 313. Rate of interest after maturity 602 314. Increased rate after default 606 315. Calculation and apportionment of interest 608 316. Compound interest 611 317. Interest in lieu of notice 612 318. Legislative jurisdiction as to interest and mort- gages ; 613 CHAPTER 30 COSTS. 321. General principles 617 322. Costs of negotiating and completing loan 618 323. Costs incurred to protect the security 619 324. Costs of mortgage action 622 -325. Taxation of costs 628 PART VIII. STATUTORY AND CONTRACTUAL RIGHTS. CHAPTER 31. SALE UNDER POWER OF SALE. 331. Origin of the power of sale 631 332. Statutory implied power of sale 633 333. Contractual power of sale 638 334. Statutory short form of power of sale 640 335. Qualifications of the short form 642 336. Who may exercise the power 646 337. When the power may be exercised 649 338. Power of sale without notice 653 339. Form and service of notice 654 340. Concurrent proceedings by the mortgagee 662 341. Conduct of the sale ./ 665 342. Who may purchase 673 xviii TABLE OF CONTENTS. . 343. The conveyance and its effect 676 344. Application of the proceeds 680 345. .Sale under the Land Titles Acts '. 683 CHAPTER 32. APPOINTMENT OF RECEIVER. 351. Receiver for equitable mortgagee 686 352. Appointment under the Judicature Act 688 353. Mortgagee 's statutory or express power to appoint 690 354. Liability for acts or defaults of receiver 692 355. Powers and liability of receiver 692 CHAPTER 33. ATTORNMENT AND DISTRESS. 361. Express power to distrain 694 362. Tenancy created by attornment 696 363. Distress- in case of attornment 700 364. On what goods the mortgagee may distrain 705 365. What arrears may be recovered by distress 709 366. Attornment under the Land Titles Acts 710 CHAPTER 34. FIRE INSURANCE. 371. Insurable interest 712 372. Right or obligation to insure 714 373. Insurance in the name of the mortgagor 716 374. Mortgage clause in insurance policy 721 375. Insurance in the name of the mortgagee 724 376. Application of insurance money 726 CHAPTER 35. THE SHORT FORMS OF MORTGAGES ACT. 381. Short forms provided by statute 731 382. .Schedule A 732 383. Schedule B 733 384. Implied covenants . 738 TABLE OF CONTENTS. ill CHAPTER 36. THE MORTGAGORS AND PURCHASERS RELIEF ACT. 391. Proceedings not to be taken without leave 742 392. Excepted cases 744 393. Powers of the judge 746 394. Retroactive operation 748 395. Power to make rules '. . 749 396. Lands situate or mortgage made without Ontario 749 397. Duration of the statute 749 INDEX. 751 Abbreviations [The following list refers in most instances to Canadian reports, the usual abbreviations of the English reports being omitted. The reports cited below as U.C.C.P., O.A.R., O.P.R., are usually cited in the province of Ontario simply as C.P., A.R., P.R., respectively, but this local method of citation seems too brief for use outside the province.] A.L.R. Alberta Law Reports. B.C.R. British Columbia Reports. C.L.J. Canada Law Journal. C.L.T. Canadian. Law Times. Can. S.C.R. Supreme Court of Canada Reports. D.L.R. Dominion Law Reports. Draper Draper's Upper Canada Queen Bench Re- ports. Or. Grant's Upper Canada Chancery Reports. L.Q.R. Law Quarterly Review. M.R. Manitoba Reports. N.B. Eq. Gas. New Brunswick Equity Cases. N.B.R. New Brunswick Reports. N.S.R. Nova Scotia Reports. N.W.T.L.R. Territories Law Reports. O.A.R. Ontario Appeal Reports. O.L.R. Ontario Law Reports (since 1900). O.P.R. Ontario Practice Reports. O.R. Ontario Reports. O.W.N. Ontario Weekly Notes. O.W.R. Ontario Weekly Reporter. Q-L.J. Queensland Law Journal. R-C. Ruling Cases (English). S.L.R. Saskatchewan Law Reports. ABBREVIATIONS. xxi U.C. Chy. Ch. Upper Canada Chancery Chambers Reports. U.C.C.P. Upper Canada Common Pleas Reports. U.C.E. & A. Upper Canada Error and Appeal Reports. U.C.O.S. Upper Canada Reports, Old Series. U.C.R. Upper Canada Reports (Queen's Bench). V.L.R. Victorian Law Reports. W. & T.L.C. Eq. White and Tudor, Leading Cases in Equity, 8th edition. W.L.R. Western Law Reporter. W.W.R. Western Weekly Reporter. Table of Cases Abbott and Medcalf, Re, 1891, 20 O.R. 299 260, 658' Abbott v. Stratten, 1846, 3 Jo. & Lat. 603 76 Abell v. Heathcote, 1793, 4 Bro. C.C. 277 670 Abell v. Morrison, 1890, 19 O.R. 669 129 Acadian Loan Co. v. Legere, 1911, 45 N.S.R. 328 366 Acme Co. v. Huxley, 1912, 4 A.L.R. 63 79 Adams v. Angell, 1877, 5 Ch.D. 634 343, 345, 346, 347 Adams v. Claxton, 1801, 6 Ves. 226 150- Adams and McFarland, Re, 1914, 20 D.L.R. 293 156 Adanac Oil Co. v. Stocks, 1916, 11 A.L.R. 214, 28 D.L.R. 215 172 Agra Bank v. Barry, 1874, L.R. 7 H.L. 135, 21 R.C. 784 128 Agricultural Savings and Loan Co. v. Liverpool and London and Globe Insurance Co., 1901, 3 O.L.R. 127, reversed sub nom. Liverpool, etc. v. Agricultural, etc., Co., 1903, 33 Can. S.C.R. 94 718, 723 Agricultural Savings and Loan Co. v. Webb, 1907, 15 O.L.R. 213. 206 Aikins v. Blain, 1867,, 13 Gr. 646 .- 74, 687, 688: Ainsworth v. Wilding, [1905] 1 Ch. 435 598 Airey v. Mitchell, 1874, 21 Gr. 510 515, 529 Alarie and Frechette, Re, 1913, 23 M.R. 628, 14 D.L.R. 298 469 Alderson v. Elgey, 1884, 26 Ch.D. 567 325- Alderson v. White, 1858, 2 De.G. & J. 97 52 Aldrich v. Canada Permanent Loan and Savings Co., 1897, 24 O.A.R. 193, 27 O.R. 548 668, 670 Aldrich v. Cooper, Durham v. Lankester, Durham v. Armstrong, 1802, 18 Ves. 382, 18 R.C. 198, 1 W. & T.L.C. Eq. 35 244 Alexander v. Gesman, 1911, 4 S.L.R. 111, affirmed sub nom. Mc- Killop & Benjafield v. Alexander, 1912, 45 Can. S.C.R. 551, 1 D.L.R, 586 185- Alison, In re, Johnson v. Mounsey, 1879, 11 Ch.D. 284 51, 390, 517, 563, 566, 582, 665 Allan v. McTavish, 1878, 2 O.A.R. 278 515, 523 Allan v. Rever, 1902, 4 O.L.R. 309 277 Allen v. Hill, 1591, Cro. Eliz. 238, 25 R.C. 1 353 Allen v. Lloyd, in re Lloyd, 1879, 12 Ch.D. 447 689 Allen v. Longstaffe, Garfltt v. Allen, 1887, 37 Ch.D. 48 351 Allenby v. Dalton, 1835, 5 L.J.K.B. 312 52 Alliance Bank v. Broom, 1862, 2 Dr. & Sm. 289 80 Allison v. Frisby, In re Frisby, 1889, 43 Ch.D. 106 . .522, 523, 527, 549 American Abell Engine and Thresher Co. and Noble, In re, 1906, 6 N.W.T.L.R. 359 168- Ames v. Mannering, 1859, 26 Beav. 583 527 Aucaster (Duke of) v. Mayer, 1785, 1 Bro. C.C. 453, 1 W. & T.L.C. Eq. 1, 18 R.C. 176 269, 270, 271, 367 Anderson v. Elgie, 1903, 6 O.L.R. 147 282 Anderson v. Hanna, 1889, 19 O.R. 58 ... . 646, TABLE OF CASES. xxiii Anderson v. Henry, 1898, 29 O.K. 719 704 Anderson v. Stevenson, 1888, 15 O.R. 563 658 Anderton, Re, 1908 8 W.L.R. 319 570 Angel v. Smith, 1804, 9 Ves. 335 688 Annable v. Coventry, 1912, 46 Can. S.C.R. 573, 5 D.L.R. 661, af- firming Coventry v. Annable, 1911, 4 S.L.R. 175, 425 . .177, 180, 181 Anon., 1707, 1 Salk. 155 201 Anon., 1746, 3 Atk. 313 534 Anon., 1821, 6 Madd. & G. 10 638 Ansell v. Bradley, 1916, 37 O.L.R. 142, 31 D.L.R. 297 655 Appelbe v. Windsor Security Co., 1917, 41 O.L.R. 217, 40 D.L.R. 256, S.C. 1918, 42 O.L.R. 16 744 Archbold v. Building and Loan Association, 1888, 16 O.A.R. 1, . reversing 15 O.R. 237 493, 494, 496, 604 Archer v. Severn, 1886, 14 O.A.R. 723, 12 O.R. 615 225 Archibald v. Lawlor, 1902, 35 N.S.R. 48 553 Ardagh v. Wilson, 1867, 1 Chy. Ch. (U.C.) 389 438 Argles v. McMath, 1896, 23 O.A.R. 44 22 Armstrong v. Lye, 1897, 24 O.A.R. 543, 27 O.R. 511 114 Armstrong v. Lye, 1900, 27 O.A.R. 287 344 Arnold v. National Trust Co., 1912, 5 A.L.R. 214, 7 D.L.R. 754.. 45 Ashenhurst v. James, 1746, 3 Atk. 270 201 Ashton v. Corrigan, 1871, L.R. 13 Eq. 76 633 Ashton v. Dalton, 1846, 2 Coll. 565, 18 R.C. 40 79 Ashworth v. Lord, 1887, 36 Ch.D. 545 582, 596, 597 Assets Co. v. Mere Roihi, [1905] A.C. 177 156, 175, 176, 180, 182 Astbury v. Astbury, [1898] 2 Ch. Ill 532 Astley v. Milles, 1827, 1 Sim 298 343 Attorney-General of Ontario v. Mercer, 1883, 8 App. Cas. 767, reversing 5 Can. S.C.R. 538 219 Attorney-General v. Odell [1906] 2 Ch. 47 155 Atkinson and Horsell's Contract, In re, [1912] 2 Ch. 1 556 Auger, Re, 1912, 26 O.L.R. 402, 5 D.L.R. 680 286, 289 Austin v. Story, 1863, 10 Gr. 306 729 Auston v. Boulton, 1866, 16 U.C.C.P. 318 193 Ayerst v. McClean, 1890, 14 O.P.R. 15 413 Backhouse v. Charlton, 1878, 8 Ch.D. 444 389 Bacon v. Rice Lewis & Son, 1897, 33 C.L.J., 680 , 23 Bagnall v. Villar, 1879, 12 Ch.D. 812 584 Bailey, In re, Bailey v. Bailey, 1879, 12 Ch.D. 268 32 Bailey v. Barnes, [1894] 1 Ch. 25, 18 R.C. 510 94, 99, 104, 678 Bailey v. Richardson, 1852, 9 Hare 734 341 Bain v. Brand, 1876, 1 App. Cas. 762 22 Bain v. Pitfield, 1916, 26 M.R. 89, 28 D.L.R. 206 171 Baker, In re, Ex parte Bisdee, 1840, 1 Mont. D. & De G. 333, 18 R.C. 137 . 20 xx iv TABLE OF CASES. Baker v. Welton, 1845, 14 Sim. 426 566 Bald v. Thompson, 1869, 16 Gr. 177 394 Balfe v. Lord, 1842, 2 Dr. & War. 480, 18 R.C. 481 4, 5, 388 Ball v. Lord Riversdale, 1816, Beatty 550 567 Bank of Africa v. Cohen, [1909] 2 Ch. 129 391 Bank of Montreal v. Condon, 1896, 11 M.R. 366 171 Bank of Montreal v. Stuart, [1911] A.C. 120 27 Bank of New South Wales v. O'Connor, 1889, 14 App. Gas. 273. . 494, 497, 622, 623 Bank of Toronto v. Irwin, 1881, 28 Gr. 397 454 Bank of Upper Canada v. Brough, 1862, 2 U.C.E. & A. 96 259 Bank of Upper Canada v. Scott, 1858, 6 Gr. 451 392 Banks v. Whittal, 1847, 1 DeG. & Sm. 536 77 Banner v. Berridge, 1881, 18 Ch.D. 254 *94, 517 Barber v. McCuaig, 1897, 24 O.A.R. 492, reversed sub nom, Mc- Cuaig v. Barber, 1898, 29 Can. S.C.R. 126 242 Barber v. McCuaig (no. 2), 1900, 31 O.R. 593 242 Barber v. McKay, 1890, 19 O.R. 46 112 Barclay, Ex parte, In re Joyce, 1874, L.R. 9 Ch. 576 669 Barker v. Illingworth, [1908] 2 Ch. 20 650 Barnes v. Glenton, [1899] 1 Q.B. 885 516, 523 Barnes v. Racster, 1842, 1 Y & C.C.C. 401 619 Barnett v. Guildford (Earl) , 1855, 11 Ex. 19 256 Barnhart v. Greenshields, 1853, 9 Moo. P.C. 18, 5 Gr. 99 53 Barron v. Martin, 1815, 19 Ves. 327 534 Barrow v. Isaacs & Son, [1891] 1 Q.B. 417 18 Barry v. Anderson, 1891, 18 O.A.R. 247 644, 653 Bartlett v. Jull, 1880, 28 Gr. 140 654, 656, 680 Bartlett v. Rees, 1871, L.R. 12 Eq. 395 392, 437 Barton v. Bank of New South Wales, 1880, 15 App. Cas. 379 51 Barton v. McMillan, 1892, 20 Can. S.C.R. 404 52 Bashford v. Cann, 1863, 33 Beav. 109 50 Baskerville v. Otterson, 1873, 20 Gr. 379 197 Bassett v. Nosworthy, 1673, Rep.t. Finch 102, 2 W. & T.L.C. Eq. 163, 21 R.C. 702 100 Batcheldor v. Yates, In re Yates, 1888, 38 Ch.D. 112 669 Batchelor v. Middleton, 1848, 6 Hare 75 566 Bateman v. Hunt, [1904] 2 K.B. 530 .199, 200 Bates v. Hillcoat, 1852, 16 Beav. 139 438 Batten, Proffitt & Scott v. Dartmouth Harbour Commissioners, 1890, 45 Ch.D. 612 627 Battison v. Hobson, [1896] 2 Ch. 403 176 Baynard v. Woolley, 1855, 20 Beav. 583 76 Beachey, In re, Heaton v. Beachey, [1904] 1 Ch. 67 86, 194 Beale v. Symonds, 1853, 16 Beav. 406 267 Beam v. Beatty, 1902, 4 O.L.R. 554 25 Beaton v. Wilbur, 1906, 3 N.B. Eq. 309 51 TABLE OF CASES. xxv Beatty v. Bailey, 1912, 26 O.L.R. 145, 3 D.L.R. 831 384, 516 Beatty v. Fitzsimmons, 1893, 23 O.K. 345 235, 236 Beaty v. Gregory, 1897, 24 O.A.R. 325 370 Beatty v. O'Connor, 1884, 5 O.K. 747 574, 625, 672, 682 Beaty v. Shaw, 1886, 13 O.K. 21, 14 O.A.R. 600 316 Beavan, In re, Ex parte Coombe, 1819, 4 Madd. 249, 20 R.R. 294. . 78 Becher v. Webb, 1879, 7 O.P.R. 445 433 Beckes v. Tiernan, Re Molphy, 1896, 17 O.P.R. 247 440 Beckett v. Buckley, 1874, L.R. 17 Eq. 435 505 Beckford v. Kemble, 1822, 1 Sim. & St. 7 489 Beddoe, In re, Downes v. Cottam, [1893] 1 Ch. 547 620, 623 Beekman v. Jarvis, 1847, 3 U.C.R. 280 124 Beetham, In re, Ex parte Broderick, 1887, 18 Q.B.D. 380 78 Beevor v. Luck, 1867, L.R. 4 Eq. 537 438, 504 Belanger v. Belanger, 1911, 24 O.L.R. 439 29 Bell, In re, Lake v. Bell, 1886, 34 Ch.D. 462 517 Bell v. Antwerp, London and Brazil Line, [1891] 1 Q.B. 103 377 Bell v. Carter, 1853, 17 Beav. 11 52 Bell v. Walker, 1873, 20 Gr. 558 231 Bellamy v. Badgerow, 1893, 24 O.R. 278 295 Bellamy v. Brickenden, 1861, 2 John & H. 137 575 Benjamin Cope & Sons, In re, Marshall v. Benjamin Cope & Sons, [1914] 1 Ch. 800 . . . . 84 Bennett v. Aburrow, 1803, 8 Ves. 609 677 Bennett v. Foreman, 1868, 15 Gr. 117 393 Bennett v. Harfoot, 1871, 19 W.R. 428 421 Bent v. Young, 1838, 9 Sim. 180 1 489 Bernard v. Faulkner, 1914, 7 A.L.R. 439, 18 D.L.R. 174 239, 485 Berney v. Sewell, 1820, 1 J. & W. 647 591, 688 Berwick & Co. v. Price, [1905] 1 Ch. 632 97, 100 Beswetherick v. Griesman, 1915, 8 O.W.N. 439 747 Beswetherick and Greisman, Re, 1915, 8 O.W.N. 566 747 Bethune v. Calcutt, 1853, 3 Gr. 648 443 Bettes v. Farewell, 1865, 15 U.C.C.P. 450 -. 611 Betts, In re, Ex parte Harrison, 1881, 18 Ch.D. 127 700, 702 Bickerton v. Walker, 1885, 31 Ch.D. 151 199, 506 Bickford v. Grand Junction Ry. Co., 1877, 1 Can. S.C.R. 696 . .417, 425 Bidder v. Bridges, 1887, 37 Ch.D. 406 502 Bigelow v. Staley, 1864, 14 U.C.C.P. 276 311 Biggs v. Freehold Loan and Savings Co., 1901, 31 Can. S.C.R. 136, reversing 26 O.A.R. 232 517, 603 Biggs v. Hoddinott, [1898] 2 Ch. 307 44, 490 Bills v. Tatham, In re Patrick, [1891] 1 Ch. 82 192 Birch v. Wright, 1786, 1 T.R. 378, 15 R.C. 626 354 Bird v. Wenn, 1886, 33 Ch.D. 215 146, 624 Birmington v. Harwood, 1825, Turn. & R. 477 597 xxvi TABLE OF CASES. Bisdee, Ex parte, In re Baker, 1840, 1 Mont. D. & DeG. 333, 18 R.C. 137 20 Bishop v. Church, 1751, 2 Ves. Sen. 370 497 Biss, In re, Biss v. Biss, [1903] 2 Gh. 40 92, 676 Black v. Hiebert, 1907, 38 Can. S.C.R. 557 575 Blackburn v. Parbola, In re Parbola [1909] 2 Ch. 437 429 Blackwood v. London Chartered Bank of Australia, 1874, L.R. 5 P.C. 92 ." 105 Blake v. Beaty, 1855, 5 Gr. 359 333, 339 Blake v. Gale, 1886, 32 Ch.D. 571 487 Bland and Mohun, Re, 1913, 30 O.L.R. 100, 16 D.L.R. 716 . . .196, 313 Blong v. Fitzgerald, 1893, 15 O.P.R. 467 413 Bloomfield v. Hellyer, 1895, 22 O.A.R. 232 584 Bloye's Trust, 1849, 1 Mac. & G. 488 673 Blumberg v. Life Interests, etc., Corporation, [1897] 1 Ch. 171, [1898] 1 Ch. 27 500 Blunt v. Marsh, 1888, 1 N.W.T.L.R. 126 53 Boardman v. Handley, 1899, 4 N.W.T.L.R. 266 51 Bolding v. Lane, 1863, 1 DeG. J. & S. 122 532 Bolton v. Buckenham, [1891] 1 Q.B. 278 376 Bolton v. Salmon, [1891] 2 Ch. 48 505 Bompas v. King, 1886, 33 Ch.D. 279 583, 587 Bondy v. Fox, 1869, 29 U.C.R. 64 110 Bonham v. Newcomb, 1684, 1 Vern. 232 389 Bonney v. Ridgard, 1784, 1 Cox's Cas. in Ch. 145 . '. '. 534 Booth v. Booth, 1742, 2 Atk. 343 349 Boston v. Lelievre, 1870, L.R. 3 P.C. 157 223 Boultbee v. Gzowski, 1898, 39 Can. S.C.R. 54, 24 O.A.R. 502, 28 O.R. 285 234 Boulter-Waugh v. Phillips, 1918, 42 D.L.R. 548 177 Boulton v. Rowland, 1883, 4 O.R. 720 : 625 Bourton v. Williams, 1870, L.R. 5 Ch. 665 502 Bousfield v. Hodges, 1863, 33 Beav. 90 668 Bovey v. Skipwith, 1671, 1 Cas. in Ch. 201 137, 147 Bovill v. Endle, [1896] 1 Ch. 648 352, 490, 494 Bowes, In re, Ex parte Jackson, 1880, 14 Ch.D. 725 697, 700, 701 Bowyer v. Woodman, 1867, L.R. 3 Eq. 313 528 Box v. Bridgman, 1875, 6 O.P.R. 234 675 Boyd v. Johnson, 1890, 19 O.R. 598 234 Boyd v. Petrie, 1872, L.R. 7 Ch. 385, 14 R.C. 760 651 Boyne v. Robinson, 1904, 3 N.B. Eq. 57 682 Brace v. Duchess of Marlborough, 1728, 2 P. Wms. 491 105 Bradburn v. Edinburgh Life Assurance Co., 1903, 5 O.L.R. 657 492, 614, 615 Bradford Banking Co. v. Briggs, 1886, 12 App. Cas. 29 122 Bradley's Estate, In re, 1903, 6 O.L.R. 397 30 Bradley v. Borlase, 1858, 7 W.R. 125 .627 TABLE OF CASES. xxvii Bradley v. Carritt, [1903] A.C. 253 47, 48, 490 Bradshaw v. Patterson, 1911, 4 S.L.R. 208 570 Bradshaw v. Widdrington, [1902] 2 Ch. 430 526 Brandt's Sons & Co. v. Dunlop Rubber Co., [1905] A.C. 454 197 Briethaupt v. Marr, 1893, 20 O.A.R. 689 124 Brennan v. Finley, 1905, 9 O.L.R. 131 550 Brethour v. Brooke, 1893, 23 O.R. 658, 21 O.A.R. 144 258, 357, 595 Bridges v. Real Estate Loan and Debenture Co., 1885, 8 O.R. 493 203, 205 Briggs v. Calverley, 1800, 8 T.R. 629 498 Briggs v. Jones, 1870, L.R. 10 Eq. 92 95 Bright v. Campbell, 1889, 41 Ch.D. 388 606 Bright v. McMurray, 1882, 1 O.R. 172 563 Bristol & West of England Land Co. v. Taylor, 1893, 24 O.R. 286. . 207 British Canadian Loan and Agency Co. v. Farmer, 1904, 15 M.R. 593 530,538,602 British Canadian Loan and Investment Co. and Ray, Re, 1888, 16 O.R. 15 653 British Canadian Loan Co. v. Tear, 1893, 23 O.R. 664 235, 240 British and Canadian Loan and Investment Co. v. Williams, 1888, 15 O.R. 366 56, 339, 384 British Columbia Land and Investment Agency v. Ishitaka, 1911, 45 Can. S.C.R. 302 666 British Columbia Tie and Timber Co., Re, 1908, 14 B.C.R. 81 663 British South Africa Co. v. Companhia de Mocambique, [1893] A.C. 602 391 British South Africa Co. v. DeBeers Consolidated Mines, [1910] 2 Ch. 502, [1912] A.C. 52 75 British Union and National Insurance Co. v. Rawson, [1916] 2 Ch. 476 240 Brock v. Forster, 1897, 34 N.B.R. 262 257 Brocklesby v. Temperance, etc., Building Society, [1895] A.C. 173 96,192 Broderick, Ex parte, In re Beetham, 1887, 18 Q.B.D. 380 78 Brooks v. Marston, In re Fox, [1913] 2 Ch. 75 557 Brooks v. Muckleston, [1909] 2 Ch. 519 394 Brotherton v. Hetherington, 1876, 23 Gr. 187 586 Brower v. Canada Permanent Building Association, 1877, 24 Gr. 509 146 Brown, Ex parte, In re Reed, 1878, 9 Ch.D. 389 669 Brown's Estate, In re, Brown v. Brown [1893] 2 Ch. 300 376, 543 Brown v. Barkham, 1720, 1 P. Wins. 652 608 Brown v. Broughton, 1915, 25 M.R. 489, 24 D.L.R. 244 156, 180 Brown v. Brown, 1904, 8 O.L.R. 332 283 Brown v. Cole, 1845, 14 Sim. 427, 18 R.C. 116 490, 557, 558 Brown v. Deacon, 1866, 12 Gr. 198 608 Brown v. Freeman, 1851, DeG. & S. 444 50 xxviii TABLE OF CASES. Brown v. Grady, 1899, 31 O.K. 73 37& Brown v. McLean, 1889, 18 O.K. 533 129, 313 Brown v. Metropolitan Counties Life Insurance Society, 1859, 1 El. & El. 832, 9 R.C. 610 252, 696 Brown v. Peto, [1900] 2 Q.B. 653 257 Browne v. Lockhart, 1840, 10 Sim. 420 493 Browne v. Ryan, [1901] 2 I.R. 653 46 Brownlee v. Cunningham, 1867, 13 Gr. 586 434 Bruse & Garden, 1869, L.R. 5 Ch. 32 50 Brush v. ^3tna Insurance Co., 1864, I Old (N.S.) 459 719 Bryson v. Huntington, 1877, 25 Gr. 265 623 Buchanan v. Harvie (No. 2) , 3 N.B. Eq. 61 45 Buckley v. Wilson, 1861> 8 Gr. 566 334, 402, 407, 657 Bucknam v. Stewart, 1897, 11 M.R. 625 53& Building and Loan Association v. McKenzie, 1897, 28 Can. S.C.R. 407, 24 O.A.R. 599, 28 O.R. 316 , 91 Building and Loan Association v. Poaps, 1896, 27 O.R. 470.. 121, 418 Bull v. North British Canadian Investment Co., 1889, 18 Can. S.C.R. 697, Cameron, S.C. Cas. 1, affirming 15 O.A.R. 421. . 722 Bullen v. Renwick, 1862, 9 Gr. 202 52, 587 Bunnell v. Gordon, 1890, 20 O.R. 281 283 Burke v. O'Connor, 1853, 4 Ir. Ch. 418 620 Burn v. Burn, 1797, 3 Ves. 573 7ff Burnett v. Guildford (Earl) , 1855, 11 Ex. 19 360 Burns v. Davidson, 1892, 21 O.R. 547 489 Burrell, In re, Burrell v. Smith, 1869, L.R. 7 Eq., 399 384, 407 Burrell v. Earl of Egremont, 1843, 7 Beav. 205, 18 R.C. 540. .346, 526 Burrowes v. Molloy, 1845, 2 Jo. & Lat. 521 390, 393 Burrows v. Ellison, 1871, L.R. 6 Ex. 128 554 Burt, Boulton & Hay ward v. Bull, [1895] 1 Q.B. 276, 18 R.C. 462 ..584,693 Burton v. Dougall, 1899, 30 O.R. 543 676 Bute (Marquis of) v. Cunynghame, 1826, 2 Russ. 275 243 Butler v. McMicken, 1900, 32 O.R. 422 524 Butler v. Rice, [1910] 2 Ch. 277 340 Cahuac v. Durie, 1869, 2 Chy. Ch. (Ont.) 394 451 Caldwell v. Stadacona Fire and Life Insurance Co., 1883, 11 Can. S.C.R. 212 717 Callischer v. Bischoffsheim, 1870, L.R. 5 Q.B. 449 35 Calvert v. Burnham, 1881, 6 O.A.R. 620 619 Cameron v. Cameron, 1869, 2 Chy. Ch. (Ont.) 375 451 Cameron v. Gibson, 1889, 17 O.R. 233 584 Cameron v. Kerr, 1878, 3 O.A.R. 30 503 Cameron v. Mcllroy, 1884, 1 M.R. 242 621 Cameron v. McRae, Sparks v. Redhead, 1852, 3 Gr. 311 389 Cameron v. Walker, 1890, 19 O.R. 212 550 TABLE OF CASES. xxix Cameron v. Wolfe Island Co., 1873, 6 O.P.R. 91 433 Campbell, In re, Campbell v. Campbell, [1893] 2 Ch. 206 273 Campbell v. Canadian Co-operative Investment Co., 1906, 16 M.R. 464 716 Campbell v. Douglas, 1916, 54 Can. S.C.R. 28, 32 D.L.R. 734, af- firming 34 O.L.R. 580, 25 D.L.R. 436 235 Campbell v. Holyland, 1877, 7 Ch.D. 166 452, 453 Campbell v. Imperial Loan Co., 1905, 15 M.R. 614 507 Campbell v. Imperial Loan Co., 1908, 18 M.R. 144 564, 679 Campbell v. McDougall, 1880, 5 O.A.R. 503, affirmed sub worn. McDougall v. Campbell, 1881, 6 Can. S.C.R. 502 459 Campbell v. Morrison, 1897, 24 O.A.R. 224, affirmed sub nom. Maloney v. Campbell, 28 Can. S.C.R. 228 236, 240 Canada Landed and National Investment Co. v. Shaver, 1895, 22 O.A.R. 377 233, 240 Canada Life Assurance Co. v. Vance, 1909, 2 S.L.R. 398 458 Canada Permanent Building and Savings Society v. Rowell, 1860, 19 U.C.R. 124 250 Canada Permanent Building Society v. Teeter, 1889, 19 O.R. 156 653, 665 Canada Permanent Loan and Savings Co. v. Macdonnell, 1875, 22 Gr. 461 504 Canada Permanent Mortgage Corporation v. Jesse, 1909, 2 S.L.R. 251 465 Canada Permanent Mortgage Corporation v. Martin, 1909, 2 S.L.R. 472 464 Canada Settlers Loan Co. v. Nicholles, 1896, 5 B.C.R. 41 389 Canada Trust Co. v. Layton, 1916, 9 S.L.R. 244, 30 D.L.R. 283 . . 379 Canadian Bank of Commerce v. Forbes, 1885, 10 O.P.R. 442.. 328 Canadian Bank of Commerce v. Rolston, 1902, 4 O.L.R. 106 . . 260, 263 Canadian Mining and Investment Co. v. Wheeler, 1902, 3 O.L.R. 210 260 Canadian Mortgage Investment Co. v. Cameron, 1917, 55 Can. S.C.R. 409, 38 D.L.R. 428, reversing 11 A.L.R. 441, 33 D.L.R. 792 601 Canadian Pacific Ry. Co. v. Silzer, 1910, 3 S.L.R. 162 170 Capell v. Winter, [1907] 2 Ch. 376 95, 96 Capital and Counties Bank v. Rhodes, [1903] 1 Ch. 631 161, 163, 183, 338 Carpenter v. Parker, 1857, 3 C.B.N.S. 206 255 Carr, Ex parte, In re Hofman, 1879, 11 Ch.D. 62 620 Carr v. Fire Insurance Association, 1887, 14 O.R. 487 727 Carrick v. Smith, 1874, 35 U.C.R. 348 312 Carroll v. Robertson, 1868, 15 Gr. 173 581, 587, 679 Carruthers v. Hamilton Provident and Loan Society, 1898, 12 M.R. 60 668 Carson v. Simpson, 1894, 25 O.R. 385 21 xxx TABLE OF CASES. Carter, Ex parte, 1773, Amb. 733 142 Carter v. Bell, 1915, 21 B.C.R. 55, 21 D.L.R. 243 674 Carter v. Grasett, 1888, 14 O.A.R. 685 311 Carter and Justins, In re, Ex parte Sheffield Union Banking Co., 1865, 13 L. T. 477 78 Carter v. Stone, 1890, 20 O.R. 340 233 Carter v. Wake, 1877, 4 Ch.D. 605 122, 388 Carver v. Richards, 1860, 27 Beav. 488 677 Casborne v. Scarfe, 1737, 1 Atk. 603, 2 W. & T.L.C. Eq. 6, 18 R.C. 369 53, 216, 296, 414 Case v. Bartlett, 1898, 12 M.R. 280 124 Cash v. Belcher, 1842, 1 Hare 310 627 Casner v. Haight, 1884, 6 O.R. 451 413 Cassels v. Hudson, In re Hudson, [1908] 1 Ch. 655 266 Cassidy v. Cassidy, 1889, 24 L.R. Ir. 577 4 Castell & Brown, In re, [1898] 1 Ch. 135 95 Castellain v. Preston, 1883, 11 Q.B.D. 380 714, 724, 725 Cattanach v. Urquhart, 1873, 6 O.P.R. 28 418 Cave v. Cave, 1880, 15 Ch.D. 639 100 Cayley v. Hodgson, 1867, 13 Gr. 433 421 Central Canada Loan and Savings Co. and Yanover, Re, 1915, 8 O.W.N. 522 747 Central Trust Co. v. Algoma Steel Co., 1903, 6 O.L.R. 464 398 Challinor, Ex parte, In re Rogers, 1880, 16 Ch.D. 260 618 Chalmers v. Freedman, 1909, 18 M.R. 523 353 Chambers v. Gold win, 1804, 9 Ves. 25* 506, 588, 592 Champion v. White v. World Building, 1916, 22 B.C.R. 596, 27 D.L.R. 506 132 Chaplin v. Young (no. 1), 1864, 33 Beav. 330 584 Chapman v. Purtell, 1915, 25 M.R. 76, 22 D.L.R. 860 742 Chapman v. Smith, [1907] 2 Ch. 97 255, 583 Chaproniere v. Lambert, [1917] 2 Ch. 356 73 Charles v. Jones, 1886, 33 Ch.D. 80 623 Charles v. Jones, 1887, 35 Ch.D. 544 682, 683 Charters v. McCracken, 1916, 36 O.L.R. 153, 29 D.L.R. 756 131 Chatfield v. Cunningham, 1892, 23 O.R. 153 454, 677, 680 Chawnor's Will, In re, 1869, L.R. 8 Eq. 569 633 Chennel v. Martin, 1833, 4 Sim. 340 439 Chetwynd v. Allen, [1899] 1 Ch. 356 340 Chew v. Traders Bank of Canada, 1909, 19 O.L.R. 74 717 Chinnery v. Evans, 1864, 11 H.L.C. 115 525, 527, 548 Chisholm v. Sheldon, 1850, 1 Gr. 318 595 Chishom v. Provincial Insurance Co., 1869, 20 U.C.C.P. 11 717 Cholmeley v. Paxton, 1825, 3 Bing. 207 670 Cholmley v. Countess Dowager of Oxford, 1741,' 2 Atk. 267 512 Cholmondeley (Marquis) v. Clinton (Lord), 1820, 2 Jac. & W. 1, 134 .... 505, 666 TABLE OF CASES. xxxi Chomley v. Firebrace, 1878, 5 V.L.R. 57, 1 Hunter's Torrens Title Cases 98 181 Christison v. Bolam, In re Gregson, 1887, 36 Ch.D. 223 682 Cl'agstone and Hammond, Re, 1897, 28 O.R. 409 183 Clark v. Barber, Re, 1894, 26 O.R. 47 371 Clark v. Bogart, 1880, 27 Gr. 450 248 Clark v. Harvey, 1888, 16 O.R. 159 644, 646, 653 Clarke v. Cooper, 1892, 15 O.P.R. 54 397 Clarke v. Freehold Loan and Savings Co., 1888, 16 O.R. 598 232 Clarke v. Millwall Dock Co., 1886, 17 Q.B.D. 494, 9 R.C. 655 706 Clarke v. Palmer, 1882, 21 Ch.D. 124 95 Clarkson v. Attorney-General of Canada, 1889, 16 O.A.R. 202 ... 274 Clarkson v. Henderson, 1880, 14 Ch.D. 348 611 Clay v. Sharpe, 1802, 18 Ves. 346n 632 Ueary v. Aitken, 1914, 19 B.C.R. 369, 17 D.L.R. 548 52 Cliff v. Wadsworth, 1843, 2 Y. & C.C.C. 598 498 Clowes v. Hughes, 1870, L.R. 5 Ex. 160 703 Coast Lumber Co. v. McLeod, 1914, 7 S.L.R. 382, 20 D.L.R. 343.. 185 Cockburn v. Edwards, 1881, 18 Ch.D. 449 81, 521, 583, 606 Cockell v. Taylor, 1852, 15 Beav. 103 203 Coldwell v. Hall, 1862, 9 Gr. 110 589, 591, 596 Coleman v. Winch, 1721, 1 P. Wms. 775 150 Collins v. Cunningham, Cunningham v. Drysdale, 1892, 21 Can. S.C.R. 139 658 Collins v. Shirley, 1830, 1 R. & My. 638 406 Collinson v. Jeffrey, [1896] 1 Ch. 644 451, 512 Colonial Investment and Loan Co. v. King, 1902, 5 N.W.T.L.R. 371 473 Colquhoun v. Murray, 1899, 26 O.A.R. 204 531 Colston v. Roberts, In re Fleck, 1888, 37 Ch.D. 677 273 Colyer v. Colyer, Pawley v. Colyer, 1863, 3 DeG. J. & Sm. 676 325 Coming, Ex parte, 1803, 9 Ves. 115, 18 R.C. 44 79 Commercial Bank v. Breen, 1889, 15 V.L.R. 672, 1 Hunter's Tor- rens Title Cases 407 189 Commercial Bank v. Watson, 1859, 5 U.C.L.J. 163 658 Commercial Union Assurance Co. v. Temple, 1898, 29 Can. S.C.R. 206 713 Compton (Lord) v. Oxenden, 1793, 4 Bro. C.C. 396 343 Confederation Life Association v. Leier, 1908, 1 S.L.R. 131 622 Continental Oxygen Co., In re, Elias v. The Co., [1897] 1 Ch. 511 391, 399 Constable v. Guest, 1858, 6 Gr. 510 587 Converse v. Michie, 1865, 16 U.C.C.P. 167 124 Cook's Mortgage, In re, Lawledge v. Tyndall, [1896] 1 Ch. 923.. 682 Cook v. Belshaw, 1893, 23 O.R. 545 133, 134 Cook v. Dawson, 1861, 29 Beav. 123 633 Cook v. Fowler, 1874, L.R. 7 H.L. 27, 14 R.C. 546 602, 604, 605 xxxii TABLE OF CASES. Cook v. Guerra, 1872, L.R. 7 C.P. 132 251 Cook v. Koldoffsky, 1916, 36 O.L.R. 555, 28 D.L.R. 346 132, 133 Cook v. Thomas, 1876, 24 W.R. 427 584 Cooke v. Loxley, 1792, 5 T.R. 4, 15 R.C. 297 706 Cooley v. Smith, 1877, 40 U.C.R. 543 121 Coolidge v. Nelson, 1900, 31 O.R. 646 121 Coombe, Ex parte, In re Beavan, 1819, 4 Madd. 249, 20 R.R. 294. 78 Cooper, In re, Cooper v. Vesey, 1882, 20 Ch.D. 611 127, 412 Cooper and Allen's Contract, In re, 1876, 4 Ch.D. 802 649 Cooper v. Anderson, 1912, 22 M.R. 428, 5 D.L.R. 218 177 Cooper v. Metropolitan Board of Works, 1883, 25 Ch.D. 472 20 Cope v. Cope, 1895, 26 O.R. 441 280 Cope v. Crichton, 1899, 30 O.R. 603 114 Copestake v. Hoper, [1908] 2 Ch. 10 18, 54, 266 Corbett v. Plowden, 1884, 25 Ch.D. 678 257 Corby v. Gray, 1888, 15 O.R. 1 235 Cordery v. Morgan, 1811, 18 Ves. 344, 18 R.C. 442 632 Corham v. Kingston, 1889, 17 O.R. 432 728 Cork (Earl of) v. Russell, 1871, L.R. 13 Eq. 210 505, 627 Cornwall v. Henriod, 1866, 12 Gr. 338 512 Corsellis v. Patman, 1867, L.R. 4 Eq. 156 621 Cotham v. West, 1839, 1 Beav. 380 597 Cotter, Re, 1903, 14 M.R. 485 644 Cotterell v. Stratton, 1872, L.R. 8 Ch. 295 497, 622, 623, 624 Cotrell v. Finney, 1874, L.R. 9 Ch. 541 498, 623, 624 County of Gloucester Bank v. Rudry Merthyr, etc. Colliery Co., [1895] 1 Ch. 629 589, 689, 690 Court v. Holland, 1880, 8 O.P.R. 213 434 Court v. Holland, 1881, 29 Gr. 19 201, 436, 590 Court v. Walsh, 1882, 9 O.A.R. 294, 1 O.R. 167 556, 558 Courtman v. Conyers, 1600, Acta Cancellariae 764 40 Coventry v. Annable, 1911, 4 S.L.R. 175, 425, affirmed sub nom. Annable v. Coventry, 1912, 46 Can. S.C.R. 573, 5 D.L.R. 661 .177, 180, 181 Cowan v. Allan, 1896, 26 Can. S.C.R. 292 427 Cowper v. Green, 1841, 7 M. & W. 633, 18 R.C. 564 301 Cox v. Adams, 1904, 35 Can. S.C.R. 393 27 Cradock v. Scottish Provident Institute, 1894, 63 L.J. Ch. 15, 69 L.T. 380, 70 L.T. 718 76 Craig v. McKay, 1906, 12 O.LJl. 121 112 Crane v. Hoffman, 1916, 35 O.L.R. 412 24 Crawford v. Armour, 1867, 13 Gr. 576 385, 394 Crawford v. Meldrum, 1872, 19 Gr. 165 403 Creamer v. Gooderham, 1914, 7 S.L.R. 173, 17 D.L.R. 235 ..538, 564 Credit Foncier Franco-Canadien v. Shultz, 1893, 9 M.R. 70 603 Credit Foncier Franco-Canadien v. Shultz, 1894, 10 M.R. 158 458 Crerar & Muir, Re, 1879, 8 O.P.R. 56 . . 630 TABLE OF CASES. xxxiii Crippen v. Ogilvie, 1869, 15 Gr. 568 596 Croft v. Powel, 1738, Comyns 603 632 Cronin, In re, [1914] 1 I.R. 23 5 Cronn v. Chamberlin, 1880, 27 Gr. 551 262, 263 ronyn, Kew & Betts, Re, 1880, 8 O.P.R. 372 630 <,rosbie v. Fenn, 1879, 26 Gr. 283 428 Crosbie-Hill v. Sayer, [1908] 1 Ch. 866 104, 312, 341 Croskery, Re, 1888, 16 O.R. 207 285, 288 Crow v. Campbell, 1884, 10 V.L.R. 186, 1 Hunter's Torrens Title Cases 87 181 Crowdy, Re, Burges v. Crowdy, 1882, 46 L.T. 71 76 Croxon v. Lever, 1863, 12 W.R. 437 421 Cruso v. Bond, 1882, 1 O.R. 384 491 Cruso v. Close, 1879, 8 O.P.R. 33 457 Cummins v. Fletcher, 1880, 14 Ch.D. 699 41, 137, 138, 140 Cummins v. Harrison, 1868, 1 Ch. Ch. (Ont.) 369 402 Cundiff v. Fitzsimmons, [1911] 1 K.B. 513 19 Cunningham v. Drysdale, Collins v. Cunningham, 1892, 21 Can. S.C.R. 139 658 Cunningham v. Hamilton, 1897, 5 B.C.R. 539 604, 605 Curlewis v. Clark, 1849, 3 Ex. 375 502 Currie v. Currie, 1910, 20 O.L.R. 375 526 urrie v. Sperer, 1915, 9 O.W.N. 174 440 Curtis v. Sheffield, 1882, 20 Ch.D. 398 550 Cut-Rate Plate Glass Co. v. Soledinski, 1915, 34 O.L.R. 604, 25 D.L.R. 533 132 Daigneau v. Dagenais, 1903, 5 O.L.R. 265 624 Dallas, In re, [1904] 2 Ch. 385 94 Dance v. Goldingham, 1873, L.R. 8 Ch. !402 672 Daniell v. Sinclair, 1881, 6 App. Gas. 181, 18 R.C. 144 600, 604, 611 Darby's Estate, In re, Rendall v. Darby, [1907] 2 Ch. 465.. 243, 246 Darling v. Wilson, 1869, 16 Gr. 255 404 Darrell v. Whitchot, 1669, 2 Rep. in Ch. 59 92 Davenport v. James, 1847, 7 Hare 249 399 Davey v. Durrant, 1857, 1 DeG. & J. 535 666, 667, 672 Davidson v. Boyes, 1873, 6 O.P.R. 27 412 Davidson v. McKay, 1867, 26 U.C.R. 306 Ill Davis v. Barrett, 1851, 14 Beav. 542 201, 344 Davis v. Dendy, 1818, 3 Madd. 170 588 Davis v. White, 1869, 16 Gr. 312 438 Day v. McLea, 1889, 22 Q.B.D. 610 502 Dearie v. Hall, 1823, 3 Russ. 1, 10 R.C. 478 94 DeBeck v. Canada Permanent Loan and Savings Co., 1907, 12 B.C.R. 409 662 DeBeers Consolidated Mines v. British South Africa Co., [1912] A.C. 52 . 75 xxxiv TABLE OF CASES. Bedford v. Boulton, 1878, 25 Gr. 561 507, 563 Delaney v. Canadian Pacific Ry. Co., 1891, 21 O.K. 11 360, 530, 538 Delaney v. Fox, 1857, 2 C.B.N.S. 768, 15 R.C. 299 706 Delbridge v. Brantford (Township), 1917, 40 O.L.R. 443, 38 D.L.R. 677 113 DeLisle v. Union Bank of Scotland, [1914] 1 Ch. 22 200 DeNicholls v. Saunders, 1870, L.R. 5 C.P. 589 251 Dennistoun v. Fyfe, 1865, 11 Gr. 372 '. 74 Deschamps v. Miller, [1908] 1 Ch. 856 391 Detillin v. Gale, 1802, 7 Ves. 583, 18 R.C. 502 ....617, 620, 622, 623 Dibb v. Walker, [1893] 2 Ch. 429 521 Dibbins v. Dibbins, [1896] 2 Ch. 348 51 ]Mckens.on v. Harrison, 1817, 4 Price 282, 18 R.C. 474 370 Dicker v. Angerstein, 1876, 3 Ch.D. 600 678, 679 Dickinson v. Burrell, 1866, L.R. 1 Eq. 337 231 Dilke v. Douglas, 1880, 5 O.A.R. 63 218, 223, 224, 308, 311, 315 Tingle v. Coppen, [1899] 1 Ch. 726 530 Dixon v. Muckleston, 1872, L.R. 8 Ch. 155 79, 95 Dobson v. Land, 1850, 8 Hare 216 575, 724 Dodds v. Harper, 1916, 37 O.L.R. 37, 32 D.L.R. 22 200 Podson v. Downey, [1901] 2 Ch. 620 234 Doe dem. Anderson v. Todd, 1845, 2 U.C.R. 82 57 Doe dem. Bryant v. Cunard, 1843, 2 Kerr (N.B.) 193 352 Doe dem. Carter v. Barnard, 1849, 13 Q.B. 945 .555, 563 Doe dem. Curzon v. Edmunds, 1840, 6 M. & W. 295 547 Doe dem. Dixie v. Davics, 1851, 7 Ex. 89 699 1 Doe dem. Dunlop v. McNab, 1859, 5 U.C.R. 289 556 Doe dem. Fisher v. Giles, 1829, 5 Bing. 421 352 Doe dem. Garrod v. Olley, 1840; 12 A. & E. 481 258, 352, 357, 699 Doe dem. Higginbotham v. Barton, 1840, 11 Ad. & E. 307 354 Doe dem. Holderness v. Donelly, 1846, 3 Kerr (N.B.) 238 194 Doe dem. Holt v. Roe, 1830, 6 Bing. 447 621 Doe dem. Hughes v. Bucknell, 1838, 8 C. & P. 566 257 Doe dem. Jones v. Williams, 1836, 5 A. & E. 291 543 Doe dem. Jukes v. Sumner, 1845, 14 M. & W. 39 555 Doe dem. Matthewson v. Wright, 1801, 4 Esp. 5 655 Doe dem. Mcintosh v. Mcdonell, 1835, 4 U.C.O.S. 195 60 ' Doe dem. McKenzie v. Rutherford, 1844, 1 U.C.R. 172 59 Doe dem. Pell v. Mitchener, 1831, Draper 471 117 Doe dem. Perry v. Henderson, 1847, 3 U.C.R. 486 547 Doe dem. Richardson v. Dickson, 1832, 2 U.C.O.S. 292 264 Doe dem. Roby v. Maisey, 1828, 8 B. & C. 767 354 Doe dem. Rogers v. Cadwallader, 1831, 2 B. & Ad. 473 256 Doe dem. Ross v. Papst, 1853, 8 U.C.R. 574 77 Doe dem. Roylance v. Lightfoot, 1841, 8 M. & W. 553 355, 543 Doe dem. Slason v. Hanson, 1857, 8 N.B.R. (3 Allen) 427 217 Doe dem. Spafford v. Brown, 1833, U.C.O.S. 92 60 TABLE OF CASES. xxxv Doe dem. Webster v. Fitzgerald, 1839, E.T. 2. V., 4 Ont. Dig. 2647 263 Doe dem. Whitaker v. Hales, 1831, 7 Bing. 322 256 Doe dem. Wood v. Fox, 1846, 3 U.C.R. 134 193 Dolman v. Nokes, 1855, 22 Beav. 402 674 Dolphin v. Aylward, 1870, L.R. 4 H.L. 486 245, 247 Dolsen, Re, 4 U.C. Chy. Ch. 36 311 Dominion of Canada Investment and Debenture Co. v. Carstens, 1917, 10 S.L.R. 272, 36 D.L.R. 25 238 Dominion of Canada Investment and Debenture Co. v. Gelhorn, 1917, 10 S.L.R. 278, 36 D.L.R. 154 238 Dominion Savings and Investment Society v. Kittridge, 1876, 23 Gr. 631 146,147 Donisthorpo v. Porter, 1762, 2 Eden 162 339 Donovan v. Bacon, 1869, 16 Gr. 472 260 Doody, In re, Hibbert v. Lloyd, [1893] 1 Ch. 129 629 Dougall v. Dougall, 1879, 26 Gr. 401 488 Douglas v. Mutual Life Assurance Co., 1918, 13 A.L.R. 18, 38 D.L.R. 459, 39 D.L.R. 601, reversed, sub nom. Mutual Life Assurance Co. v. Douglas, 1918, 57 Can. S.C.R. 243, 44 D.L.R. 115 161, 470, 485 Douglas v. Patrick, 1790, 3 T.R. 683 498 Douglass v. Culverwell, 1862, 4 DeG. F. & J. 20 624 Doull v. Doelle, 1905, 10 O.L.R. 411 374 Downe (Viscount) v. Morris, 1844, 3 Hare 394 219, 267 Downes v. Cottam, In re Beddoe, [1893] 1 Ch. 547 620, 623 Downes v. Grazebrook, 1817, 3 Mer. 200 673 Downey v. Parnell, 1882, 2 O.R. 82 '. 607 Dowson and Jenkin's Contract, In re, [1904] 2 Ch. 19 647 Doyle v. Kauffman, 1877, 3 Q.B.D. 7, 340 550 Drake v. Kershaw-, In re Kershaw, 1888, 37 Ch.D. 674 272 Drake v. Mitchell, 1803, 3 East 251 704 Drax, In re, Savile v. Drax, [1903] 1 Ch. 781 599 Drayton v. Loveridge, In re Loveridge, [1902] 2 Ch. 859 216 Drewry v. Percival, 1909, 19 O.L.R. 463 ' 35 Drinkwater and Kerr, Re, 1907, 15 O.L.R. 76 628 Driver v. Broad, [1893] 1 Q.B. 744 83 Drought v. Redford, 1827, 1 Moll. 572 393 Dryden v. Frost, 1838, 3 My. & Cr. 670 192, 617, 619 Drysdale v. Piggott, 1856, 8 DcG. M. & G. 546 50 Dublin (Corporation) v. Judge, 1847, 11 Ir. L.R. 8 546 Duder v. Amsterdamsch Trustees Kantoor, [1902] 2 Ch. 132 391 Dumble .v. Larush, 1878-9, 25 Gr. 552, 27 Gr. 187 535 Dumble v. Mclntosh, In re Music Hall Block, 1884, 8 O.R. 225.280, 310 Dundas v. Desjardins Canal Co., 1870, 17 Gr. 27 77 Dunlop, In re, Dunlop v. Dunlop, 1882, 21 Ch.D. 583 243 Dunn v. Attorney-General, 1864, 10 Gr. 482 .392 xxxv i TABLE OF CASES. Dunstau v. Patterson, 1847, 2 Ph. 341 325 Durham v. Lankester, Durham v. Armstrong, Aldrich v. Cooper, 1802, 18 Ves. 382, 18 R.C. 198, 1 W. & T.L.C. Eq. 35. .. . 244 Duty of Registrar in Mortgage Proceedings, Re, [1917] 1 W.W.R. 331 479 DuVigier v. Lee, 1843, 2 Hare 326 529 Dymond v. Croft, 1876, 3 Ch.D. 512 395 Dyson v. Morris, 1842, 1 Hare 413 455 Earle v. Harrison, 1909, 4 N.B. Eq. 196 593 East v. Clarke, 1915, 33 O.L.R. 624, 23 D.L.R. 74 550 Eastman v. Bank of Montreal, 1885, 10 O.R. 78 276 Eaton v. Dorland, 1893, 15 O.P.R. 138 488 Economic Life Assurance Society v. Usborne, [1902] A.C. 147 . . 605 Edmonds v. Hamilton Provident and Loan Society, 1891, 18 O.A.R. 347 609, 707, 708, 709, 727, 728, 729 Edmondson v. Copland, [1911] 2 Ch. 301 494, 497 Edmonton Mortgage Co. v. Gross, 1911, 3 A.L.R. 500 479 Edmunds v. Waugh, 1866, L.R. 1 Eq. 418, 16 R.C. 291 529 Edwards v. Standard Rolling Syndicate, [1893] 1 Ch. 574 688 Edwards v. Countess of Warwick, 1723, 2 P. Wms. 171 608 Egleson v. Howe, 1879, 3 O.A.R. 566 202 Eider, The, [1896] P. 119 377 Elias v. Continental Oxygen Co., In re the Co., [1897] 1 Ch. 511 391, 399 Elliott, Re, 1917, 41 O.L.R. 276, 40 D.L.R. 649 33 Elliott v. Byers, 1917, 13 O.W.N. 107 421 Elliott v. Dearsley, 1880, 16 Ch.D. 322 273 Elliott v. Hunter, 1876, 24 Gr. 430 , 434 Elliott v. Jayne, 1865, 11 Gr. 412 344 Elliott v. McConnell, 1874, 21 Gr. 276 203, 205 Ellis, Ex parte, [1898] 2 Q.B. 79 382 Ellis v. Dellabough, 1869, 15 Gr. 583 673 Ellis v. Glover & Hobson, [1908] 1 K.B. 388 22, 23 Ellison v. Wright, 1827, 3 Russ. 458 620 Elton v. Curteis, 1881, 19 Ch.D. 49 443 Emerson v. Humphries, 1892, 15 O.P.R. 84 410 Emmanuel College v. Evans, 1625-6, 1 Rep. in Ch. 18 40 Engerson v. Smith, 1862, 9 Gr. 16 197, 313 England v. Codrington, 1758, 1 Eden 169 624 Entwisle v. Lenz, 1908, 14 B.C.R. 51 171 Errington, In re, Ex parte Mason, [1894] 1 Q.B. 11 233 Euclid Avenue Trusts Co. v. Hobs, 1911, 24 O.L.R. 447 27 Evans v. Elliott, 1838, 9 A. & E. 342... 256 Evans v. Rival Granite Quarries, [1910] 2 K.B. 979 83 Ewart v. Dryden, 1867, 13 Gr. 50 500 Ewart v. Snyder, 1867, 13 Gr. 55 223 TABLE OF CASES. xxxvii Excelsior Life v. Prestniak, 1908, 1 S.L.R. 215 458 Eyre v. Hanson, 1840, 2 Beav. 478 ' 451 Eyre v. Hughes, 1876, 2 Ch.D. 148, 18 R.C. 385 585, 588 Eyre v. Wynn-Mackenzie, [1894] 1 Ch. 218 45, 629 Faber v. Earl of Lathom, 1897, 77 L.T. 168 415 Fairclough v. Marshall, 1878, L.R. 4 Ex. 37 359 Fairclough v. Swan Brewery Co., [1912] A.C. 565 43 Fairweather v. The Company, In re Metropolitan Amalgamated Estates, [1912] 2 Ch. 497 687 Faithful v. Woodley, 1889, 43 Ch.D. 287 416 Falcke v. Scottish Imperial Insurance Co., 1886, 34 Ch.D. 234.. 576 Falkner v Equitable Reversionary Society, 1858, 4 Drew, 352 ... 671 Fallon v. Keeman, 1866, 12 Gr. 388 45 Farah v. Glen Lake Mining Co., 1908, 17 O.L.R. 1 166 Farhall v. Farhall, 1871, -L.R. 7 Ch. 123 370 Farley, Ex parte, In re New, 1841, 1 Mont. D. & DeG. 683 80 Farmer v. Pitt, [1902] 1 Ch. 954 81, 146 Farmers' Loan & Savings Co. v. Patchett, 1904, 6 O.L.R. 255, 8 O.L.R. 569 207 Farrand v. Yorkshire Banking Co., 1888, 40 Ch.D. 132 95 Farrant v. Lovell, 1750, 3 Atk. 723 579 Farrar v. Farrars, 1888, 40 Ch.D. 395 651, 666, 673, 675 Farrell v. Caribou' Gold Mining Co., 1897, 30 N.S.R. 199 45 Farrer v. Lacy, Hartland & Co., 1885, 31 Ch.D. 42, affirming 25 Ch.D. 636 395, 422, 621, 672 Farrington v. Forrester, In re Jones, [1893] 2 Ch. 461. .244, 246, 248 Farrington v. Smith, 1894, 20 V.L.R. 90 190 Farrow v. Rees, 1840, 4 Beav. 18 95 Faulds v. Harper, 1886, 11 Can. S.C.R. 639, reversing 9 O.A.R. 537 505, 535, 560, 561, 562, 565 Faulkner v. Bolton, 1835, 7 Sim. 319 512 Faulkner v. Faulkner, 1893, 23 O.R. 252 373 Faw.cett v. Burwell, 1880, 27 Gr. 445 581 Fawell v. Andrew, 1917, 10 S.L.R. 162, 34 D.L.R. 12 696 Federal Life Assurance Co. v. Stinson, 1906, 13 O.L.R. 127, af- firmed sub nom. Scott v. Swanson, 1907, 39 Can. S.C.R. 229 148,44.2 Fenwick v. Potts, 1856, 8 DeG. M. & G. 506 76 Fenwick v. Reed, 1816, 1 Mer. 114 5 Ferguson v. Frontenac, 1874, 21 Gr. 188 150 Fewings, Ex parte, In re Sneyd, 1883, 25 Ch.D. 338 605, 618, 619 Fialkowski v. Fialkowski, 1911, 4 A.L.R. 10 78 Finch v. Gilray, 1889, 16 O.A.R. 484 550 Finck v. Tranter, [1905] 1 K.B. 427 254, 687 Fink v. Patterson, 1860, 8 Gr. 417 51 Fink v. Robertson, 1907, 4 Commonwealth L.R. 864 485 xxxvlii TABLE OF CASES. First National Bank v. Cudmore, 1917, 10 S.L.R. 201, 34 D.L.R. 201...: 710,711 Fish v. Bryce, 1909, 2 S.L.R. 111 181 Fisher Mortgage Sale, In re, 1911, 4 S.L.R. 374 682 Fisher v. Ross, 1914, 24 M.R. 773, 19 D.L.R. 69 742 Fisken v. McMullen, 1862, 12 U.C.C.P. 85 264 Fitzgerald v. Fitzgerald, 1903, 5 O.L.R. 279 283 Fitzgerald's Trustee v. Mellersh, [1892] 1 Ch. 385 491, 493 Fitzgibbon v. Duggan, 1865, 11 Gr. 188 263 Flack v. Longmate, 1845, 8 Beav. 420 278- Fleck In re, Colston v. Roberts, 1888, 37 Ch.D. 677 273 Fleming v. Palmer, 1866, 12 Gr. 226 " 207 Fletcher v. Fletcher, 1844, 4 Hare 67 373 Fletcher v. Rodden, 1882, 1 O.R. 155 536 Fleury v. Pringle, 1878, 26 Gr. 67 282 Flight v. Bentley, 1835, 7 Sim. 149 252 Flint v. Howard, [1893] 2 Ch. 54 243, 247, 504 Foakes v. Beer, 1884, 9 App. Cas. 605 383, 502 Foley v. Burnell, 1783, 1 Bro. C.C. 277 372 Foley v. Canada Permanent Loan and Savings Co., 1883, 4 O.R. 38 25- Forbes v. Jackson, 1882, 19 Ch.D. 615 506 Forbes v. Moffatt, 1811, 18 Ves. 384, 17 R.C. 380 . . . .339, 344 Ford v. Allen, 1869, 15 Gr. 565 529 Ford v. Earl of Chesterfield, 1853, 16 Beav. 516, 21 Beav. 426.. 627 Ford v. Jones, 1862, 12 U.C.C.P. 358 359 Ford v. Older, 1867, L.R. 3 Eq. 461 56 Ford v. Steeples, 1844, 1 U.C. Jur. pt. 1, 282 451 Ford v. Wastell, 1847, 6 Hare 229 453 Forrest v. Laycock, 1871, 18 Gr. 611 282 Forrester v. Campbell, 1870, 17 Gr. 379 121 Forster v. Harvey, 1863, 4 DeG. J. & S. 59 460 Forster v. Hoggart, 1850, 15 Q.B. 155 659 Forster v. Ivey, 1901, 2 O.L.R. 480 242 Forster v. Patterson, 1881, 17 Ch.D. 132 559, 560, 561 Forsyth v. Bristowe, 1853, 8 Exch. 716 521 Fourth City Mutual Benefit Building Society v. Williams, 1879, 14 Ch.D. 140 312,341 Fox, In re, Brooks v. Marston, [1913] 2 Ch. 75 .'.. .. 55T Frail v. Ellis, 1852, 16 Beav. 350 388 Francis v. Harrison, 1889, 43 Ch.D. 183 412 Fraser, In re, Lowther v. Fraser, [1904] 1 Ch. Ill, 726 272 Fraser v. Fairbanks, 1894, 23 Can. S.C.R. 79 235 Fraser v. Locie, 1863, 10 Gr. 207 434 Fraser v. Sutherland, 1851, 2 Gr. 442 112 Freehold Loan Co. v. McArthur, 1888, 5 M.R. 207 127 Freehold Loan Co. v. McLean, 1891, 8 M.R. 116 603, 604 Freme v. Brade, 1858, 2 DeG. & J. 582 50* TABLE OF CASES. xxxix Friend v. Young, [1897] 2 Ch. 421, 16 R.C. 193 517 Frisby, In re, Allison v. Frisby, 1889, 43 Ch.D. 106 522, 523, 527, 549 Frith and Osborne, In re, 1876, 3 Ch.D. 618 670 Frontenac Loan and Investment Society v. Hysop, 1892, 21, O.R. 577 % 233,239 Fullerton v. Brydges, 1895, 10 M.R. 431 235 Fulton and Mclntyre, Re, 1904, 7 O.L.R. 445 29 Furnwall v. Coombes, 1843, 5 Man. & G. 736 370 Fursdon v. Clogg, 1842, 10 M. & W. 572 546, 547 G. v. V., 1867, 2 Chy. Ch. (Ont.) 33 : 451 Gaillard v. Hawkins, 1884, 27 Ch.D. 298 267 Galbraith v. Morrison, 1860, 8 Gr. 289 201 Gandy v. Gandy, 1885, 30 Ch.D. 57 '. 373 Gant v. HobbS; In re Robinson's Settlement, [1912] 1 Ch. 717 370 Gardiner v. Gardiner, 1832, 2 U.C.O.S. 554 60 Gardiner v. Munro, 1896, 28 O.R. 375 46 Gardner v. Brown, 1890, 19 O.R. 202 283 Garfitt v. AHen, Allen v. Longstaffe, 1887, 37 Ch.D. 48 351 Garforth v. Bradley, 1755, 2 Ves. Sen. 675 494 Gaskell v. Gosling, [1896] 1 Q.B. 669 692 Gaskin v. Phoenix Insurance Co., 1866, 11 N.B.R. (6 Allen) 249. . 714 Gatfield's Case, In re Metropolis and Counties Permanent In- vestment Building Society, [1911] 1 Ch. 698.' 558, 566 Gee v. Bell, 1887, 35 Ch.D. 160 417 Gee v. Liddell, [1913] 2 Ch. 62 415, 506 Gemmell v. Burn, 1878, 7 O.P.R. 381 446 Gemmill v. Nelligan, 1895, 26 O.R. 307 285, 288 General Finance, Mortgage and Discount Co. v. Liberator Per- manent Benefit Building Society, 1878, 10 Ch.D. 15 351 Gentles v. Canada Permanent and Western Canada Mortgage Corporation, 1900, 32 O.R. 428 652 George v. Lang, 1916, 36 O.L.R. 180, 30 D.L.R. 502 745 George and Lang, Re, 1916, 36 O.L.R. 382, 30 D.L.R. 504 746 Gibbon, In re, Moore v. Gibbon, [1909] 1 Ch. 367 267, 341 Gibbons v. McDougall, 1879, 26 Gr. 214 651 Gibbs v. Cruickshank, 1873, L.R. 8 C.P. 454 255 Gibbs v. Messer, [1891] A.C. 248 155, 156, 167, 180 Gibson v. Nelson, 1901, 2 O.L.R. 500 429 Gifford (Lord) v. Lord Fitzharding, [1899] 2 Ch. 32 346 Gilbert v. Reeves & Co., 1911, 4 S.L.R. 97, aflarming Gilbert v. Ullerich, 4 S.L.R. 56 75 Gilchrist and Island, Re, 1886, 11 O.R. 537 643, 646, 653 Gilleland v. Wadsworth, 1877, 1 O.A.R. 82 198 Gillen v. Roman Catholic Episcopal Corporation of the Diocese of Kingston, 1884, 7 O.R. 146 501 xl TABLE OF CASES. Gilmour v. Myers, 1868, 2 Chy. Ch. (Ont.) 179 451 Gilmour v. Roe, 1874, 21 Gr. 284 232, 590 Gilmour and White, Re, 1887, 14 O.R. 694 648 Girardot v. Curry, 1917, 38 O.L.R. 350, 33 D.L.R. 272 657, 661 Glass, Ex parte, Re Macdonald, 1863, 3 O.P.R. .138 629 Glass v. Freckleton, 1864, 10 Gr. 470 404 Glasscock v. Balls, 1889, 24 Q.B.D. 13 209 Glover v. Black, 1763, 1 Wm. Bl. 396, 3 Burr. 1394 712 Glover v. Southern Loan and Savings Co., 1901, 1 O.L.R. 59. .260, 261 Goddard v. O'Brien, 1882, 9 Q.B.D. 37 502 Godfrey v. Watson, 1747, 3 Atk. 517 '. 594, 621 Gokuldoss Gopaldoss v. Rambux Seochand, 1884, L.R. 11 Ind. App. 126 347 Goldie v. Bank of Hamilton, 1900, 27 O.A.R. 619 719, 730 Goldsmid v. Stonehewer, 1852, 9 Hare App. xxxviii 412, 659 Goode v. Job, 1858, 28 L.J.Q.B. 1 547 Gooderham v. DeGrassi, 1850, 2 Gr. 135 421 Gooderham v. Moore, 1899, 31 O.R. 86 234 Gooderham v. Traders Bank, 1888, 16 O.R. 438 302, 325, 335 Goodman v. Boyes, 1890, 17 O.A.R. 528 520 Goodman v. Grierson, 1813, 2 Ball & B. 274, 18 R.C. 6... 52 Gordon v. Eakins, 1869, 16 Gr. 363 596 Gordon v. Warren, 1897, 24 O.A.R. 44 375 Gorringe v. Irwell India Rubber and Gutta Percha Works, 1886, 34 Ch.D. 128 196 Gough v. Wood & Co., [1894] 1 Q.B. 713 22 Gould v. Close, 1874, 21 Gr. 273 199 Governments Stock, etc., Co. v. Manila Ry. Co., [1897] A.C. 81 83 Gowland v. Garbutt, 1867, 13 Gr. 578 385, 394 Grace v. Kuebler and Brunner, 1917, 56 Can. S.C.R. 1, 39 D.L.R. 39, affirming 11 A.L.R. 295, 33 D.L.R. 1 177, 198 Graham v. British Canada Loan and Investment Co., 1898, 12 M.R. 244 576 Graham v. Crouchman, 1917, 41 O.L.R. 22, 39 D.L.R. 284 197 Graham v. Massey, In re Hawthorne, 1883, 23 Ch.D. 743 392 Graham v. Ross, 1884, 6 O.R. 154 378, 380, 623 Grahame v. Anderson, 1868, 15 Gr. 189 608 Grange v. Barber, 1868, 2 Chy. Ch. (Ont.) 189 513 Grant v. Canada Life Assurance Co.,. 1881, 29 Gr. 256 650 Gray v. Coughlin, 1891, 18 Can. S.C.R. 553, reversing Maclennan v. Gray, 1889, 16 O.A.R. 224, restoring 16 O.R. 321 285, 344 Gray v. Richford, 1878, 2 Can. S.C.R. 431 555 Great West Lumber Co. v. Murrin & Gray, 1916, 11 A.L.R. 173, 32 D.L.R. 485 238 Green v. Artkin, Re, 1887, 14 O.R. 697 644 Green & Flatt, Re, 1913, 29 O.L.R. 103, 13 D.L.R. 547 316 Green v. Marsh, [1892] 2 Q.B. 330 , . 704 TABLE OF CASES. xli Green v. Ponton, 1885, 8 O.R. 471 117 Green v. Stevenson, 1905, 9 O.L.R. 671. 121 Green v. Wynn, 1869, L.R. 4 Ch. 204 506 Greenshields, In re, 1905, 6 N.W.T.L.R. 208 168 Greenwood v. Commercial Bank of Canada, 1867, 14 Gr. 40.. .. 501 Greet v. Citizens Insurance Co., 1880, 5 O.A.R. 596, affirming 27 Gr. 121 719 Gregg v. Slater, 1856, 22 Beav. 314 618 Gregson, In re, Christison v. Bolam, 1887, 36 Ch.D. 223 682 Grierson v. National Provincial Bank of England, [1913] 2 Ch. 18 96 Griffith v. Crocker, 1891, 18 O.A.R.' 370 ...... 503 Griffith v. Owen, [1907] 1 Ch. 195 676 Griffith v. Pound, 1890, 45 Ch.D. 553 138, 407 Grigg v. Sturgis, 1846, 5 Hare 93 627 Gunn v. Harper, 1901, 2 O.L.R. 631 490 Gzowski v. Beaty, 1879, 8 O.P.R. 146 : 463 Haddington Island Quarry Co. v. Huson, [1911] A.C. 722 666 Haggerston v. Hanbury, 1826, 5 B. & C. 101 9 Haggert v. Brampton, 1897, 28 Can. S.C.R. 174 21 Hague, Re, Traders Bank v. Murray, 1887, 14 O.R. 660 288 Haldane v. Johnston, 1853, 8 Ex. 689 377 Hale, In re, Lilley v. Foad, [1899] 2 Ch. 107 ' 521 Hall, Ex parte, In re Whitting, 1879, 10 Ch.D. 615 73 Hall v. Brown, 1858, 15 U.C.R. 419 609 Hall v. Caldwell, 1861, 7 U.C.L.J.O.S. 42, 8 U.C.L.J.O.S. 93.. 560, 561 Hall v. Reward, 1886, 32 Ch.D 430 336, 505, 506, 589 Hall v. Morley, 8 U.C.R. 584 208, 367 Hallett v. Furze, 1885, 31 Ch.D. 312 512 Ham v. Ham, 1857, 14 U.C.R. 497 278, 280 Hamilton v. Chaine, 1881, 7 Q.B.D. 319 618 Hamilton (Township) v. Stevenson, 1877, 25 Gr. 198 460 Hamilton v. York and Baldry, 1913, 13 D.L.R. 3 (Alta.) 653 Hamilton Provident and Loan Society v. Gilbert, 1884, 6 O.R. 434 124 Hamilton Provident Loan Co. v. Smith, 1888, 17 O.R. 1 237, 332 Hamilton's Windsor Ironworks, In re, Ex parte Pitman & Ed- wards, 1879, 12 Ch.D. 707 . . ; 84 Hampson v. Fellows, 1868, L.R. 6 Eq. 575, 702 Hand v. Blow, [1901] 2 Ch. 721 90 Hanford v. Howard, 1896, 1 N.B. Eq. 241 605 Hannington v. True, Giles v. True, In re Smith, 1886, 33 Ch.D. 195 273 Hansard v. Hardy, 1812, 18 Ves. 455 512 Hanson v. Derby, 1700, 2 Vern. 392, 9 R.C. 508 . . 595 Harding v. Dav.ies, 1825, 2 C. & P. 77 498 Harding v. Tingey, 1865, 10 Jur. N.S. 872 : 491 Harlock v. Ashberry, 1882, 19 Ch.D. 539 521, 526, 536, 549 xlii TABLE OF CASES. Harmer v. Priestley, 1853, 16 Beav. 569 499 Harper v. Culbert, 1883, 5 O.K. 152 682 Harrington v. Spring Creek Cheese Mfg. Co., 1904, 7 O.L.R. 319 98, 119 Harris v. Keith, 1911, 3 A.L.R. 222 571 Harris v. Prentiss, 1880, 30 U.C.C.P. 484, varied, sub nom. Har- ris v. Mudie, 1882, 7 O.A.R. 414 535 Harrison, Ex parte, In re Betts, 1881, 18 Ch.D. 127 700, 702 Harrison, Re, 1915, 35 O.L.R. 45, 26 D.L.R. 157 124 Harrison v. Grier, 1869, 2 Ch. Ch. (Ont.) 440 402 Harrison v. Hollins, 1812, 1 S. & St. 471 558 Harrison v. Owen, 1738, 1 Atk. 520, 18 R.C. 564 301 Harron v. Yemen, 1883, 3 O.R. 126 675 Harter v. Colman, 1882, 19 Ch.D. 630 141, 143, 145, 202 Harvey, In re, Harvey v. Hobday, [1896] 1 Ch. 137 346 Haskill v. Fraser, 1862, 12 U.C.C.P. 383 280 Haslem v. Equity Fire Insurance Co., 1904, 8 O.L.R. 246 717, 718 Hatt v. Park, 1858, 6 Gr. 553 628 Hawke v. Milliken, 1866, 12 Gr. 236 51, 52 Hawthorne, In re, Graham v. Massey, 1883, 23 Ch.D. 743 392 Haydon v. Williams, 1830, 7 Bing. 163 547 Hayes v. Hayes, 1881, 8 O.P.R. 546 441 Hayes v. Hayes, 1881, 29 Gr. 90 626 Hazeldine's Trusts, In re, [1908] 1 Ch. 34 ... 557 Healey v. Daniels, 1868, 14 Gr. 633 52 Heams v. Bance, 1748, 3 Atk. 630 150 Heath v. Chim, [1908] W.N. 120 622 Heath v. Pugh, 1881, 6 Q.B.D. 345, 16 R.C. 376, affirmed *u6 nom. Pugh v. Heath, 1882, 7- App. Gas. 235, 16 R.C. 389 353, 358, 449, 536, 552, 561 Heaton v. Beachey, In re Beachey, [1904] 1 Ch. 67 86, 194 Heck v. Knapp, 1861, 20 LT.C.R. 360 360 Hedworth v. Primate, 1662, Hardres 318 137 Henderson v. Astwood, [1894] A.C. 150 585, 586, 673 Henderson v. Bank of Hamilton, 1893, 23 Can. S.C.R. 716, affirm- ing 20 O.A.R. 646 489 Henderson v. Brown, 1871, 18 Gr. 89 202 Henderson v. Henderson, 1896, 23 O.A.R. 577 544 Heney v. Kerr, 1914, 30 O.L.R. 506, 19 D.L.R. 597 118 Hermann v. Hodges, 1873, L.R. 16 Eq. 18 633 Hesse v. Briant, 1856, 2 Jur, N.S. 922 647 Hetherington v. Sinclair, 1915, 34 O.L.R. 61, 23 D.L.R. 630 53, 95, 391, 653 Reward v. Wolf enden, 1868, 14 Gr. 188 262, 263 Hewitt v. Barr, [1891] 1 Q.B. 98 .' 550 Hiatt v. Hillman, 1871, 19 W.R. 694 677 Hibbert v. Lloyd, In re Doody, [1893] 1 Ch. 129 . . 629 TABLE OF CASES. xliii Hicks v. Williams, 1888, 15 O.K. 228 . 554 Higgins v. Trusts Corporation of Ontario, 1900, 27 O.A.R. 432.. 239 Higgs v. Scott, 1849, 7 C.B. 63 '. 253 Hildyard, In re, Ex parte Smith, 1842, 2 Mont. D. & DeG. 587 . . 208 Hill v. Forsyth, 1859, 7 Gr. 461 438 Hill v. Rowlands, [1897] 2 Ch. 361 495 Hilton v. Woods, 1867, L.R. 4 Eq. 432 231 Hind v. Gidlow, 1915, 8 O.W.N. 327 746 Hind v. Poole, 1855, 1 K. & J. 383 649 Hirst & Capes, v. Fox, [1908] A.C. 416, affirming, with a variation, In re Hirst & Capes, [1908] 1 K.B. 982 630 Hislop v. Joss, 1901, 3 O.L.R. 281 577 Hitchcock v. Humphrey, 1843, 5 Man. & G. 559 376 Hixon v. Reaveley, 1904, 9 O.L.R. 6 58, 578 Hobart v. Abbott, 1731, 2 P. Wms. 643 407 Hobbs v. Ontario Loan and Debenture Co., 1890, 18 Can. S.C.R. 483 694, 697, 698, 700, 701, 702 Hobson v. Gorringe, [1897] 1 Ch. 182, 12 R.C. 208 21, 23, 95, 97 Hodge v. Attorney-General, 1839, 3 Y. & C. 342 392 Hodges v. Croydon Canal Co., 1840, 3 Beav. 86 624 Hodson v. Deans, [1903] 2 Ch. 647 673 Hodson and 'Howes' Contract, In re, 1887, 35 Ch.D. 668 676 Hofman, In re, Ex parte Carr, 1879, 11 Ch.D. 62 620 Holborrow v. Lloyd, 1859, 5 Jur. N.S. 114 618 Holcumb v. Leach; 1852, 3 Gr. 449 436 Holford v. Yate, 1855, 1 K. & J. 677 454 Holland v. Hodgson, 1872, L.R. 7 C.P. 328 21 Holland v. Smith, 1806 6 Esp. 11 50 Hollingshead, In re, Hollingshead v. Webster, 1888, 37 Ch.D. 651. 521 Holmes v. Matthews, 1855, 9 Moo. P.C. 413, 5 Gr. 108 51 Hood v. Easton, 1856, 2 Jurist N.S. 729 507 Hood v. Phillips, 1841, 3 Beav. 513, 18 R.C. 535 343 Hooker v. Morrison, 1881, 28 Gr. 369 547 Hoole v. Smith, 1881, 17 Ch.D. 434 657 Hooman, Ex parte, In re Vining, 1870, L.R. 10 Eq. 63 594 Hooper, Ex parte, 1815, 19 Ves. 477 73 Hopkins Estate, Re, 1900, 32 O.R. 315 270 Hopkinson v. Rolt, 1861, 9 H.L.C. 514, 3 R.C. 523 122 Hopper v. Harrison, 1880, 28 Gr. 22 404 Hornsey Local Board v. Monarch Investment Building Society, 1889, 24 Q.B.D. 1 524 Hosking v. Smith, 1888, 13 App. Gas. 582 310, 312 Houston, Re, Houston v. Houston, 1882, 2 O.R. 84 494, 608 How v. Vigures, 1628-9, 1 Rep. in Ch. 32 41 Howard v. Harding, 1871, 18 Gr. 181 674 Howard v. Harris, 1683, 1 Vern. 190, 2 W. & T.L.C. Eq. 11, 18 R.C. 358 42, 43, 46 xliv TABLE OF CASES. Howard v. Lightfoot, In re Lacey, [1907] 1 Ch. 330 527 Howard v. Macara, 1859, 1 U.C. Chy. Ch. 27 454 Howel v. Price, 1715, 1 P. Wms. 291 4 Howeren v. Bradburn, 1875, 22 Gr. 96 530 Hudson, In re, Cassels v. Hudson, [1908] 1 Ch. 655 266 Hughes v. Britannia Permanent Benefit Building Society, [1906] 2 Ch. 607 143 Hughes v. Howard, 1858, 25 Beav. 575 91 Hughes v. Pump House Hotel Co., [1902] 2 K.B. 190 196 Hughes v. Williams, 1852, 3 Mac & G. 683 245 Hugill v. Wilkinson, 1888, 38 Ch.D. 480 544 Huguenin v. Baseley, 1807, 14 Ves. 273, W. & T.L.C. Eq. 259 27 Hunt v. Fownes, 1803, 9 Ves. 70 621 Hunt v. Luck, [1902] 1 Ch. 428 99 Hunt v. Neve, Neve v. Pennell, 1863, 2 Hem. & M. 170 138 Hunter v. Farr, 1864, 23 U.C.R. 324 217 Hunter v. Lord Langford, 1828, 2 Moll. 272 80 Hunter v. Nockolds, 1850, 1 Mac. & G. 640 529 Hutchinson v. Standard Bank of Canada, 1917, 39 O.L.R. 286, 36 D.L.R. 378 27 Hutson and Davidson, Re, 1918, 13 O.W.N. 475 747 Hutton v. Brown, 1881, 45 L.T. 343 494 Hutton v. Justin, 1901, 2 O.L.R. 713 465 Hyde v. Barton, 1880, 8 O.P.R. 205 463 Hyde v. Chapin Co., 1916, 26 D.L.R. 381, 9 W.W.R. 1142 710, 711 Hyde v. Dalloway, 1843, 2 Hare 528 562 Hynes v. Smith, 1879, 27 Gr. 150 428 Ibbotson v. Rhodes, 1706, 2 Vern. 554, 18 R.C. 531 96 Idington v. Trusts and Guarantee Co., 1917, 11 A.L.R. 337, 34 D.L.R. 86 451 ILde v. Starr, 1909, 19 O.L.R. 471 119 Illingworth v. Houldsworth, [1904] A.C. 355 83, 84 Imperial Bank of Canada v. Metcalfe, 1886, 11 O.R. 467 312, 538 Imperial Loan and Investment Co. v. Clement, 1896, 11 M.R. 428, 445 ' 702 Imperial Loan and Investment Co. v. O'Sullivan, 1879, 8 O.P.R. 162 129 Imperial Trusts Co. v. New York Security and Trust Co., 1905 10 O.L.R. 289 '..603^ 611 Imray v. Oakshette, [1897] 2 Q.B. 218 99 Ind, Coope & Co. v. Emmerson, 1887, 12 App. Cas. 300, 21 R.C. 702 101 Independent Lumber Co. v. Bocz, 1911, 4 S.L.R. 103 173 Independent Lumber Co. v. David and Hurlburt, 1911 5 S L R i.3i6 ' ; 701 Independent Lumber Co. v. Gardiner, 1910, 3 S.L.R. 140 . 177 TABLE OF CASES xlv Independent Order of Foresters v. Pegg, 1900, 19 O.P.R. 80 ... 398 Independent Order of Foresters v. Pegg, 1900, 19 O.P.R. 254 448 Inman v. Wearing, 1850, 3 DeG. & S. 729 512 Insurance Co. v. Updegraff, 1853, 21 Penn 513 724 Irby v. Irby, 1855, 22 Beav. 217 1'50 Israel v. Leith, 1890, 20 O.K. 361 113, 115, 120, 127 Jackson, Ex parte, In re Bowes, 1880, 14 Ch.D. 725 697, 700, 701 Jackson v. Hammond, 1879, 8 O.P.R. 157 , .402, 428 Jackson v. Yeomans, 1876, 39 U.C.R. 280 368 Jacob v. Earl of Suffolk, 1728, Mosely 27 443 James Ling, Re, 1908, 43 N.S.R. 60 553 James v. Biou, 1819, 3 Swanst, 234, 18 R.C. 166 325, 503 James v. James, 1873, L.R. 16 Eq. 153 . .81, 388 James v. Kerr, 1889, 40 Ch.D. 449 * 44, 611 James v. Rumsey, 1879, 11 Ch.D. 398 6ia Jameson v. London and Canadian Loan and Agency Co., 1897, 27 Can. S.C.R. 435, reversing 23 O.A.R. 602 86, 87, 90 Jameson v. Stein, 1855, 21 Beav. 5 341 Jamieson v. London and Canadian Loan and Agency Co. (no. 2), 1899, 30 Can. S.C.R. 14, affirming 26 O.A.R. 116 89 Jared v. Clements, [1903] 1 Ch. 428 98 Jarrah, etc., Corporation v. Samuel, [1903] 2 Ch. 1, [1904] A.C. 323 46 Jefferys v. Dickson, 1866, L.R. 1 Ch. 183 692 Jellett v. Wilkie, 1896, 26 Can. S.C.R. 282, affirming 2 N.W.T.L.R. 133 171, 172, 178 Jenkins v. Jones, 1860, 2 Giff. 99 499, 667 Jenks, Ex parte, In re Wallis, [1902] 1 K.B. 719 79 Jennens, In re, 1880, 50 L.J. Ch. 4, 16 R.C. 359 545 Jennings v. Jordan, 1881, 6 App. Gas. 698, affirming Mills v. Jennings, 1880, 13 Ch.D. 639 ..136, 141, 143, 412, 659 Jennings v. Major, 1837, 8 C. & P. 61 499 Jennings v. Ward, 1705, 2 Vern. 520, 18 R.C. 365 43, 50 Jessop, In re, 1863, 32 Beav. 406 630 Jobson's Application, In re, [1918] W.N. 14 747 Johnson, Ex parte, 1875, 6 O.P.R. 225 315 Johnson v. Clark, [1908] 1 Ch. 303 27 Johnson v. Evans, 1889, 61 L.T. 18 494 Johnson v. Mounsey, In re Alison, 1879, 11 Ch.D. 284 61, 390, 517, 563, 566, 582, 665 Johnson (Samuel) & Sons v. Brock, [1907] 2 Ch. 533 ...537, 544, 559 Johnston v. Consumers Gas Co., 1896, 17 O.P.R. 297 401 Johnston v. Johnston, 1882, 9 O.P.R. 259 453 Johnston v. Reid, 1881, 29 Gr. 293 34, 138, 146 Johnston v. Wade, 1908, 17 O.L.R. 372 84 Jones, Ex parte, 1835, 4 D. & C. 750 80 xlvi TABLE OF CASES. Jones's Estate, In re, [1914] 1 I.E. 188 604 Jones, In re, Farrington v. Forrester, [1893] 2 Ch, 461. .244, 246, 248 Jones v. Beck, 1871, 18 Gr. 671 244, 248 Jones v. Creswicke, 1839, 9 Sim. 304 451, 452 Jones v. Gibbons, 1804, 9 Ves. 407 192, 194 Jones v. Kearney, 1842, 1 D. & War. 134 91, 234 Jones v. Matthie, 1847, 11 Jur. 504, on appeal from Matthie v. Edwards, 1846, 2 Coll. 465, 10 Jur. 347 665 Jones v. McGrath, 1888, 16 O.R. 617 199 Jones v. Morgan, 1783, 1 Bro. C.C. 206 343 Jones v. Shortreed, 1907, 14 O.L.R. 142 336 Jost v. McCuish, 1893, 25 N.S.R. 519 117 Joy v. Birch, 1836, 4 Cl & F. 58 51 Joyce, In re, Ex parte Barclay, 1874, L.R. 9 Ch. 576 669 Judd v. Green, 1875, 45 L.J. Ch. 108, 33 L.T. 597 205 Kaiserhof Hotel Co. v. Zuber, 1912, 46 Can. S.C.R. 651, 9 D.L.R. 877, affirming 25 O.L.R. 194 666 Kannreuther v. Geiselbrecht, In re Kloebe, 1884, 28 Ch.D. 175 ... 274 Kay v. Wilson, 1877, 2 O.A.R. 133, affirming 24 Gr. 212 488, 558 Kearsley v. Philips, 1883, 11 Q.B.D. 621 700 Keech v. Hall, 1778, Doug. 21, 18 R.C. 123 .255, 354, 357, 504 Keech v. Sandford, 1726, Sel. Gas. in Ch. 61, 2 W. & T.L.C. Eq. 706 . ...92, 676 Keefer v. Phoenix Insurance Co., 1901, 31 Can. S.C.R. 144 . . .714, 724 Keeler's Mortgage, In re, 1863, 32 L.J. Ch. 101 319 Keen v. Codd, 1891, 14 O.P.R. 182 410 Keenan v. Osborne, 1904, 7 O.L.R. 134 214 Keewatin Power Co. v. Kenora, 1906, 13 O.L.R. 237, 16 O.L.R. 184 58 Keith v. R. Gancia & Co., [1904] 1 Ch. 774 257 Kelcey, In re, Tyson v. Kelcey, [1899] 2 Ch. 530 77 Kelly v. Imperial Loan and Investment Co., 1885, 11 Can. S.C.R. 516, affirming 11 O.A.R. 526 677 Kelsey v. Kelsey, 1874, L.R. 17 Eq. 495 688 Kemp v. Lester, [1896] 2 Q.B. 162 699 Kennedy v. DeTrafford, [1897] A.C. 180, affirming [1896] 1 Ch. 762 666, 675 Kennedy v. Foxwell, 1906, 11 O.L.R. 389 411 Kennedy v. Green, 1834, 3 My. & K. 699, 21 R.C. 820 100 Kennedy v. Haddow, 1890, 19 O.R. 240 133 Kennedy v. Thomas, [1894] 2 Q.B. 759 376 Kensington, Ex parte, 1813, 2 Ves. & B. 79, 18 R.C. 30 78, 79 Kensington (Lord) v. Bouverie, 1885, 7 DeG. M. & G. 134 582 Kent v. Thomas, 1856, 1 H. & N. 473 501 Ker v. Ker, 4 I.E. Eq. 15 243, 246, 348 Kerby v. Kerby, 1856, 5 Gr. 587 586 Kerr's Policy, In re, 1869, L.R. 8 Eq. 321 '. 599 TABLE OF CASES xlvii Kerr v. Colquhoun, 1911, 2 O.W.N. 521 602, 604 Kerr v. Styles, 1879, 26 Gr. 309 260 Kerrick v. Saffery, 1835, 7 Sim. 317 406 Kershaw, In re, Drake v. Kershaw, 1888, 37 Ch.D. 674 272 Kershaw v. Kalow, 1855, 1 Jur. N.S. 974 672 Kettlewell v. Watson, 1882, 21 Ch.D. 685 98 Kibble v. Fairthorne, [1895] 1 Ch. 219 555 King, Ex parte, 1750, 1 Atk. 300 142 King v. Bird, [1909] 1 K.B. 837 257 King v. Connor, 1863, 10 Gr. 364 436 King v. Edington (Parish), 1801, 1 East 288 632 King v. Freeman, 1867, 1 Chy. Ch. (U.C.) 350 421 King v. Keith, 1898, 1 N.B. Eq. 538 611 King v. King, 1735, 2 P. Wms. 358, 18 R.C. 1 367 King v. Smith, 1843, 2 Hare 239, 18 R.C. 98 578, 579 King v. State Mutual Fire Insurance Co., 1851, 61 Mass. 1 . . .724, 725 Kingsland, Re, 1879, 8 O.P.R. 77 682 Kinnaird v. Trollope, 1888, 39 Ch.D. 636 330, 331, 332, 335, 337, 373, 384, 406, 454, 497, 506, 623 Kinnear v. Aspden, 1892, 19 O.A.R. 468 Ill, 253 Kinsman v Rouse, 1881, 17 Ch.D. 104 559, 560, 561, 565 Kirby v. Cowderoy, [1912] A.C. 599 563, 564 Kirkland v. Peatfield, [1903] 1 K.B. 756 523, 557 Kirkpatrick v. Howell, 1875, 22 Gr. 94 420 Kirkwood v. Thompson, 1865, 2 Hem. & M. 392, 2 DeG. J. & S. 613 665,675 Kitchin, In re, Ex parte Punnett, 1880, 16 Ch.D. 226 20, 699, 700 Klinck v. Ontario Industrial Loan and Investment Co., 1888, 16 O.R. 562 695, 703 Kloebe, In re, Kannreuther v. Geislebrecht, 1884, 28 Ch.D. 175 . . 274 Knapp v. Bower, 1871, 17 Gr. 695 497 Knapp v. Cameron, 1858, 6 Gr. 559 378, 446 Knight, In re, Ex. parte Voisey, 1882, 21 Ch.D. 442 . .698, 699, 702, 706 Knight v. Marjoribanks, 1849, 2 Mac. & G. 10 56 Knox v. Gye, 1872, L.R. 5 H.L. 656 533 Kraus v. Arnold, 1822, 7 Moo. 59 498 Kreglinger v. New Patagonia Meat and Cold Storage Co., [1914] A.C. 25 38, 42, 44, 45, 46, 47, 48, 49, 302 Lacey, In re, Howard v. Lightfoot, [1907] 1 Ch. 330 527 Laidlaw v. Hartford Fire Insurance Co., 1916, 10 A.L.R. 7, 29 D.L.R. 229 718 Laing v. Avery, 1867, 14 Gr. 33 551 Laing v. Ontario Loan and Savings Co., 1881, 46 U.C.R. 114 584 Lake v. Bell, In re Bell, 1886, 34 Ch.D. 462 517 Lake v. Biggar, 1860, 11 U.C.C.P. 170 498 Lakeman v. Mountstephen, 1874, L.R. 7 H.L. 17 243- xlviii TABLE OF CASES. Lally v. Longhurst, 1888, 12 O.P.R. 510 404 Lamb v. McCormack, 1857, 6. Gr. 240 393 Lambert v. Still, In re Webb, [1894] 1 Ch. 73 574 Landale v. McLaren, 1892, 8 M.R. 322 399 Landed Banking and. Loan Co. v. Anderson, 1886, 3 M.R. 270. .. 457 Landowners, etc., Co. v. Ashford, 1880, 16 Ch.D. 411 20, 587 Langdon-Davies Motors Canada v. Gasolectric Motors, 1914, 32 O.L.R. 84 399 Langton v. Langton, 1855, 7 DeG. M. & G. 30 688 Laries v. Gurety, 1874, L.R. 5 P.C. 346 618 Larios v. Bonany y Guerty, 1873, L.R. 5 P.C. 346 80 Latch v. Bright, 1869, 16 Gr. 653 Ill Latch v. Furlong, 1866, 12 Gr. 303 668, 680 LaVassaire v. Heron, 1880, 45 U.C.R. 7 696 Law v. Glenn, 1867, L.R. 2 Ch. 634 608, 692 Lawledge v. Tyndall, In re Cook's Mortgage, [1896] 1 Ch. 923.. 682 Lawley v. Hooper, 1745, 3 Atk. 278 4 Lawlor v. Lawlor, 1882, 10 Can. S.C.R. 194, reversing 6 O.A.R. 312 311 Lawrance v. Galsworthy, 1857, 3 Jur. N.S. 1049 674 Lawrason v. Fitzgerald, 1862, 9 Gr. 371 457 Lawrence v. Humphries, 1865, 11 Gr. 209 400 Lawrie v. Rathbun, 1876, 38 U.C.R. 255 117 Laws v. Toronto General Trusts Corporation, 1904, 8 O.L.R. 522. . 586 Leas Hotel Co., In re, Salter v. The Company, [1902] 1 Ch. 332. . 690 LeBrun, Re, 1916, 36 O.L.R. 135, 28 D.L.R. 386 273 Lee v. Morrow, 1866, 25 U.C.R. 604 310 Leech v. Leech, 1865, 24 U.C.R. 321 112 Leeds and Hanley Theatre of Varieties v. Broadbent, [1898] 1 Ch. 343 378, 381, 393 Lees v. Fisher, 1882, 22 Ch.D. 283 450 Lees v. Whiteley, 1866, L.R. 2 Eq. 143 719 Lehain v. Philpott, 1875, L.R. 10 Ex. 242 696 Leigh v. Burnett, 1885, 29 Ch.D. 231 91 Leitch v. Leitch, 1901, 2 O.L.R. 233 330, 336 Leitch v. McLellan, 1883, 2 O.R. 587 281 Leith v. Irvine, 1833, 1 My. & K. 277 692 LeNeve v. LeNeve, 1747, Arab. 436, 2 W. & T.L.C. Eq. 187, 21 R.C. 774 98, 128 Leonino v. Leonino, 1879, 10 Ch.D. 460 243 Leslie, In re, Leslie v. French, 1883, 23 Ch.D. 552 576 Leslie, Re, 1893, 23 O.R. 143 488 LeTarge v. DeTuyll, 1852, 3 Gr. 595 623 Lett v. Hutchins, 1871, L.R. 13 Eq. 176 494 Levy v. Sewill, In re Moss, 1885, 31 Ch.D. 90 494, 606 Lewin v. Jones, 1884, 51 L.T. 59 628 Lewin v. Wilson, 1886, 11 App. Cas. 639 521, 527, 549 TABLE OP CASES xlix Ley v. Peter, 1858, 3 H. & N. 101 546 Lickerish, Ex parte, In re Wallis, 1890, 25 Q.B.D. 176. . .588, 622, 629 Life Interest and Reversionary Securities Corporation v. Hand- in-Hand Fire and Life Insurance Society, [1898] 2 Ch. 230 678 Lilley v. Foad, In re Hale, [1899] 2 Ch. 107 521 Lindsell v. Phillips, In re Powers, 1885, 43 Ch.D. 291 523 Lineham v. McNeill, 1916, 10 A.L.R. 272, 31 D.L.R. 768 473 Ling (James), Re, 1908, 48 N.S.R. 60 553 Linstead v. Hamilton Provident and Loan Society, 1896, 11 M.R. 195 698,708 Liquidation Estates Purchase Co. v. Willoughby, [1898] A.C. 321 345, 347 Lisle v. Reeve, [1902] 1 Ch. 53, [1902] A.C. 401 56 Little v. Brunkcr, 1880, 28 Gr. 191 624 Little v. Hawkins, 1872, 19 Gr. 267 231 Liverpool and London and Globe Insurance Co. v. Agricultural, etc., Co., 1903, 33 Can. S.C.R. 94, reversing Agricultural, etc. Co. v. Liverpool, etc. Co., 3 O.L.R. 127 718, 723 Livingston v. Wood, 1880, 27 Gr. 515 623, 624 Livingstone v. Western Assurance Co., 1868, 14 Gr. 461, 16 Gr. 9 . 717 Lloyd, In re, Allen v. Lloyd, 1879, 12 Ch.D. 447 689 Lloyd, In re, Lloyd v. Lloyd, [1903] 1 Ch. 385 529, 530 Lloyd v. Attwood, 1859, 3 DeG. & J. 614 79, 104 Lloyd v. Lander, 1821, 5 Madd. 282 406 Lloyds v. Harper, 1880, 16 Ch.D. 290 373 Lloyds Bank v. Bullock, [1896] 2 Ch. 192 96, 199 Lloyds Bank v. Pearson, [1901] 1 Ch. 865 94 Lockhart v. Hardy, 1846, 9 Beav. 349, 18 R.C. 434 349, 454 Lockhart v. Yorkshire Guarantee and Securities Corporation, 1908, 14 B.C.R. 28 655, 678 Locking v. Halsted, 1888, 16 O.R. 32 .... 667 Locking v. Parker, 1872, L.R. 8 Ch. 30 517, 665 Lockridge v. Lacey, 1870, 30 U.C.R. 494 499 Lodor v. Creighton, 1860, 9 U.C.C.P. 295 211 Loke Yew v. Port Swettenham Rubber Co., [1913] A.C. 491 ... 176 London and Canadian Loan and Agency Co. v. Everitt, 1881, 8 O.P.R. 489 419 London and Canadian Loan and Agency Co. v. Morrison, 1879, 7 O.P.R. 450 457 London and County Banking Co. v. Goddard [1897] 1 Ch. 642. .91, 319 London and County Banking Co. v. Lewis, 1882, 21 Ch.D. 490. .81, 122 London County and Westminster Bank v. Tompkins, [1918] 1 K.B. 515 72, 388, 390 London Loan Co. v. Manley, 1896, 26 Can. S.C.R. 443, affirming Manley v. London Loan Co., 1896, 23 O.A.R. 139 199, 200 London Loan Co. v. Smyth, 1882, 32 U.C.C.P. 530 368 1 TA'BLE OF CASES. Long v. Long, 1870, 17 Gr. 251 498, 504 Longuet v. Scawen, 1750, 1 Ves. Sen. 402 5 Lord Advocate v. Lord Lovat, 1886, 5 App. Cas. 273 563 Loveday v. Chapman, 1875, 32 L.T. 689 438, 504 Loveridge, In re, Drayton v. Loveridge, [1902] 2 Ch. 859 216 Loveridge, In re, Pearce v. Marsh, [1904] 1 Ch. 518 216, 535 Lowell v. Bank of Upper Canada, 1863, 10 Gr. 57 259 Lowry v. Williams, [1895] 1 I.R. 274 605 Lowther v. Fraser, In re Fraser, [1904] 1 Ch. Ill, 726 272 Louis v. Telford, 1876, 1 App Cas. 414 258, 352, 354 Lucas v. Dennison, 1843, 13 Sim. 584 566 Luckhardt, Re, 1898, 29 O.K. Ill 283, 28& Luckin v. Rushworth, 1678, Rep. t. Finch 392, 2 Rep in Ch. 113 . . 92 Ludbrook v. Ludbrook, [1901] 2 K.B. 96 549 Luke v. South Kensington Hotel Co., 1879, 11 Ch.D. 121 399 Lyon v. Ryerson, 1897, 17 O.P.R. 516 664 Lyons v. Elliott, 1876, 1 Q.B.D. 210 706 Lysaght v. Westmacott, 1864, 33 Beav. 417 302 Macdonald, Re, Ex parte Glass, 1863, 3 O.P.R. 138 629 Macdonald v. Bullivant, 1884, 10 O.A.R. 582 343 Macdonald v. Fox, 1917, 39 O.L.R. 261, 35 D.L.R. 198 27 Macdonald v. Macdonald, 1886, 11 O.R. 187 530 Macdonald (John) & Co. v. Tew, 1914, 32 O.L.R. 262 179 Maclennan v. Gray, 1889, 16 O.R. 321, reversed 16 O.A.R. 224, restored sub nom. Gray v. Coughlin, 1891, 18 Can. S.C.R. 553 285, 344 Maddever, In re, Three Towns Banking Co. v. Maddever, 1884, 27 Ch.D. 523 487 Maddison v. Alderson, 1883, 8 App Cas. 467 73 Magneta Time Co., In re, Molden v. The Company, [1915] W.N. 318, 84 L.J. Ch. 814 330 Magnus v. Queensland National Bank, 1888, 37 Ch.D. 466 302 Mahar v. Fraser, 1867, 17 U.C.C.P. 408 537 Mainland v. Upjohn, 1889, 41 Ch.D. 126 611 Mair v. Kerr, 1851, 2 Gr. 223 419 Major, In re, 1897, 5 B.C.R. 244 345 Major v. Ward, 1847, 5 Hare, 598 651, 659, 660 Maloney v. Campbell, 1897, 28 Can. S.C.R. 228, affirming Camp- bell v. Morrison, 24 O.A.R. 224 236, 240 Mangles v. Dixon, 1852, 3 H.L.C. 702 198 Manitoba and Northwest Loan Co. v. Barker, 1892, 8 M.R. 296 . . . 604, 611 Manitoba and Northwest Loan Co. v. Scobell, 1885, 2 M.R. 125 . . 448 Manitoba Lumber Co. v. Emerson, 1913, 18 B.C.R. 96, 14 D.L.R. 390 43, 586- Manks v. Whiteley, [1911] 2 Ch. 448, reversed [1912] 1 Ch. 735, TABLE OF CASES li restored sub nom. Whiteley v. Delaney, [1914] A.C. 132 245, 339, 341, 342, 345, 346 Manley v. London Loan Co., 1896, 23 O.A.R. 139, affirmed sub nom. London Loan Co. v. Manley, 1896, 26 Can. S.C.R. 443 199,200 Mann v. English, 1876, 38 U.C.R. 240 354, 360 Manners v. Mew, 1885, 29 Ch.D. 725, 8 R.C. 682 19 Manning v. Burges, 1663, 1 Cas. in Ch. 29 497 Markle v. Ross, 1889, 13 O.P.R. 135 434 Markwick v. Hardingham, 1880, 15 Ch.D. 339 563, 566, 567 Marlborough, In re Duke of, Davis v. Whitehead, [1894] 2 Ch. 133 52 Marsh v. Lee, 1670, 2 Vent. 337, 2 W. & T.L.C. Eq. 118, 18 R.C. 523 105, 137 Marshall v. Cave, 1825, 3 L.J. Ch. 57 595 Marshall v. Shrewsbury, 1875, L.R. 10 Ch. 250 512 Ma-shall Brick Co. v. York Farmer's Colonization Co., 1917, 54 Can. S.C.R. 569, 36 D.L.R. 420, affirming Marshall Brick Co. v. Irving, 35 O.L.R. 542, 28 D.L.R. 464 133 Marshfield, In re, Marshfield v. Hutchins, 1887, 34 Ch.D. 721 529 Martin v. Evans, 1917, 39 D.L.R. 479, 37 D.L.R. 376 421, 563 Martin v. Hall, 1878, 25 Gr. 471 658 Martin and Merritt, Re, 1901, 3 O.L.R. 284 656, 657, 680 Martin v. Miles, 1883, 5 O.R. 404 255, 408, 486, 504, 565, 658 Martindale v. Clarkson, 1880, 6 O.A.R. 1 284 Martinson v. Clowes, 1882, 21 Ch.D. 857 674 Mason, Ex parte, In re Errington, [1894] 1 Q.B. 11 233 Mason v. Bogg, 1837, 2 My. & Cr. 443 276 Mason v. Johnston, 1893, 20 O.A.R. 412 502 Mason v. Mason, 1887, 13 O.R. 725 269, 273 Mason v. Westoby, 1886, 32 Ch.D. 206 689 Massey, Re, 1865, 34 Beav. 463 630 Massey v. Sladen, 1868, L.R. 4 Ex. 13 377 Matson v. Swift, 1841, 5 Jur. 645 608 Mathew v. Blackmore, 1857, 1 H. & N. 762 367, 370 Mathew v. McLean, 1908, 2" S.L.R. 301 448 Matthews v. Cartwright, 1742, 2 Atk. 347 76 Matthews v. Goodday, 1861, 31 L.J. Ch. 282 76 Matthews v. Usher, [1900] 2 Q.B. 535 359 Matthews v. Wallwyn, 1798, 4 Ves. 118, 18 R.C. 243 198, 201 Matthie v. Edwards, 1846, 2 Coll. 465, 10 Jur. 347, S.C. on appeal sub nom. Jones v. Matthie, 1847, 11 Jur. 504 665 Maundrell v. Maundrell, 1802, 7 Ves. 566, 10 Ves. 246 677 Maxwell v. Wightwick, 1866, L.R. 3 Eq. 210 627 Mayer v. .Murray, 1878, 8 Ch.D. 424 591 McCabe v. Thompson, 1857, 6 Gr. 175 263 McCarogher v. Whieldon, 1864, 34 Beav. 107 649 Hi TABLE OF CASES. McCarthy v. McCartie (no. 2), [1904] 1 I.R. 100 248 McCollum v. Caston, 1901, 1 O.L.R. 240 466 McCormick v. McCormick, 1874, 6 O.P.R. 208 450 McCuaig v. Barber, 1898, 29 Can. S.C.R. 126, reversing Barber v. McCuaig, 24 O.A.R. 492 242 McCue v. Smith, 1911, 17 W.L.R. 145 53 McDermid v. McDerraid, 1870, 7 O.P.R. 457 610 McDermott v. Bielschowsky, 1912, 22 M.R. 319, 3 D.L.R. 319 427 McDerraott v. Fraser, 1915, 25 M.R. 298, 23 D.L.R. 430 704, 708 McDonald, Re, McDonald & Marsh, 1879, 8 O.P.R. 88 630 McDonald v. Elliott, 1886, 12 O.R. 98 515, 523, 604 McDonald v. Grundy, 1904, 8 O.L.R. 113 523, 526, 652 McDonald v. Hime, 1868, 15 Gr. 72 302 McDonald v. McDonell, 1864, 2 U.C.E. & A. 393 263, 564 McDonald v. Mclntosh, 1851, 8 U.C.R. 388 547 McDonald v. McMillan, 1864, 23 U.C.R. 302 280 McDonald v. Peuchen, 1918, 42 O.L.R. 18, 41 D.L.R. 619 237 McDonald v. Reynolds, 1868, 14 Gr. 691 334 McDonald v. Wright, 1866, 12 Gr. 552 436 McDonell v. Building and Loan Association, 1886, 10 O.R. 580.. 702 McDonnell v. West, 1868, 14 Gr. 492 600 McDonough v. Dougherty, 1862, 10 Gr. 42 313 McDougall v. Campbell, 1881, 6 Can. S.C.R. 502, affirming Camp- bell v. McDougall, 1880,. 5 O.A.R. 503 , . .459, 513 McDougall v. Lindsay Paper Mill Co., 1884, 10 O.P.R. 247 . ..417, 427 McEllister v. Biggs, 1883, 8 App Cas. 314 178 McFadden v. Brandon, 1904, 8 O.L.R. 610 543 McGregor v. Gaulin, 1848, 4 U.C.R. 378 611 McGregor v. Hemstreet, 1912, 5 D.L.R. 301 458 Mclntosh v. Ontario Bank, 1872, 19 Gr. 155 592 Mclntyre v. Canada Co., 1871, 18 Gr. 367 547 Mclntyre v. Thompson, 1884, 6 O.R. 710 434 McKay v. Clare, Re, 1910, 20 O.L.R. 344 371 McKay v. Howard, 1883, 6 O.R. 135 367 McKay v. Hutchings, 1917, 41 O.L.R. 46 527 McKay v. McFarlane, 1872, 19 Gr. 345 381 McKay v. Reed, 1864, 1 U.C. Chy. Ch. 208 633 McKeen v. McKay, 1875, Russ (N.S. Eq.) 121 551 McKenzie v. McLeod, 1909, 39 N.B.R. 230, 4 N.B. Eq. 72 ...497, 604 McKillop & Benjafield v. Alexander, 1912, 45 Can. S.C.R. 551, 1 D.L.R. 586, affrming Alexander v. Gesman, 1911, 4 S.L.R. 111 185 McKinnon v. Anderson, 1871, 18 Gr. 684 513 McLaren v. Fraser, 1868, 15 Gr. 239 507 McLaren v. Fraser, 1870, 17 Gr. 533 149 McLaren v. Fraser, 1870, 17 Gr. 567 587, 679 McLaren v. Miller, 1874, 20 Gr. 637 611 TABLE OF CASES lili McLaughlin v. Stewart, 1901, 1 O.L.R. 295 427 McLean v. Burton, 1876, 24 Gr. 134 678, 579 McLean v. Wilkins, 1887, 14 Can. S.C.R. 22, reversing Wilkins v. McLean, 13 O.A.R. 467, and restoring 10 O.K. 58 . .208, 592 McLennan v. McLean, 1879, 27 Gr. 54 311, 312 McLeod v. Avey, 1888, 16 O.K. 365 578, 579 McLeod v. Wodland, 1893, 25 O.K. 118 129 McMahon v. North Kent Ironworks Co., [1891] 2 Ch. 148 688 McMaster v. Hector, 1872, 8 C.L.J. 284 443, 609 McMaster r. Phipps, 1855, 5 Gr. 253 120 McMichael v. Wilkie, 1891, 18 O.A.R. 464 236, 374 McMicken v. Ontario Bank, 1891, 20 Can. S.C.R. 548 -. . 51 McMicking v. Gibbons, 1897, 24 O.A.R. 586 529, 530 McMillan, Re, McMillan v. McMillan, 1893, 24 O.R. 181 32 McMillan v. McMillan, 1894, 21 O.A.R. 343, 23 O.R. 351 129 McMillan v. Munro, 1898, 25 O.A.R. 288 126 McMullen v. Free, 1887, 13 O.R. 57 359 McMullen v. Policy, 1886, 12 O.R. 702 501 McMurtry v. Leushner, 1912, 3 O.W.N. 1176, 3 D.L.R. 549 237 McNally v. Anderson, 1914, 31 O.L.R. 561, 19 D.L.R. 775 277 McPhadden v. Bacon, 1867, 13 Gr. 591 .' 316 McPherson v. Dougan, 1862, 9 Gr. 258 199 McPhillips v. London Mutual Fire Insurance Co., 1896, 23 O.A.R. 524 720 McQueen v. Phoenix Mutual Fire Insurance Co., 1880, 4 Can. S.C.R. 660 ' 717 McVean v. Tiffin, 1885, 13 O.A.R. 1 134 McVity v. Tranouth, [1908] A.C. 60, reversing 36 Can. S.C.R. 455, 9 O.L.R, 105 112, 127, 545, 550 Melbourne v. Cottrell, 1857, 29 L.T. 293 618 Melbourne Banking Corporation v. Brougham, 1882, 7 App. Cas. 307 56 Mellersh v. Brown, 1890, 45 Ch.D. 225 528, 604 Mellor v. Lees, 1742, 2 Atk. 494 41 Mellor v. Porter, 1883, 25 Ch.D. 158 419 Mendels v. Gibson, 1905, 9 O.L.R. 94 384, 683 Mennie v. Leitch, 1885, 8 O.R. 397 619 Mercantile Bank of London v. Evans, [1899] 2 Q.B. 613 196 Mercer and Moore, In re, 1880, 14 Ch.D. 287 406 Mercer v. Neff, 1898, 29 O.R. 680 32 Merriam v. Cronk, 1874, 21 Gr. 60 591, 593 Merritt v. Stephenson, 1858, 7 Gr. 22 138 Mestaer v. Gillespie, 1805, 11 Ves. 621 75 Metcalfe v. Archbishop of York, 1836, 1 My. & Cr. 547 77 Metropolis and Counties Permanent Investment Building Society, In re, Gatfield's Case, [1911] 1 Ch. 698 558, 566 Hv TABLE OF CASES. Metropolitan Amalgamated Estates, In re, Fairweather v. The Company, [1912] 2 Ch. 497 687 Metropolitan Counties, etc., Assurance Society v. Brown, 1859, 4 H. & N. 428 699 Meux v. Jacobs, 1875, L.R. 7 H.L. 481 21 Mewburn v. Mackelcan, 1892, 19 O.A.R. 729 237 Meyers v. Harrison, 1850, 1 Gr. 449 389, 455 Middleton (Lord) v. Eliot, 1847, 15 Sim. 531 497, 610 Middleton v. Scott, 1902, 4 O.L.R. 459 498 Midland Loan and Savings Co. v. Genitti, 1916, 36 O.L.R. 163, 30 D.LR. 52 730 Mildred v. Austin, 1869, L.R. 8 Eq. 220 505 Miles v. Ankatell, 1898, 25 O.A.R. 458 21 Miles v. New Zealand Alford Estate Co., 1886, 32 Ch.D. 266 ... 35 Millar v. Smith, 1873, 23 U.C.C.P. 47 110, 117, 118 Miller v. Brown, 1883, 3 O.R. 210 146, 623 Miller v. Cook, 1870, L.R. 10 Eq. 641 653 Miller v. Halifax Power Co., 1915, 48 N.S.R. 370, 24 D.L.R. 29 ... 112 Miller v. Imperial Loan and Investment Co., 1896, 11 M.R. 247 . . 709 Milburn v. Milburn, 1847, 4 U.C.R. 179 498 Miller v. Tew, 1909, 20 O.L.R. 77 719 Millett v. Davey, 1862, 31 Beav. 470 595 Mills v. Jennings, 1880, 13 Ch.D. 639, affirmed sub nom. Jen- . nings v. Jordan, 1881, 6 App. Cas. 698. .136, 141, 143, 412, 659 Mills v. United Counties Bank, [1912] 1 Ch. 231 234, 235 Milne v. Moore, 1894, 24 O.R. 456 274 Minter v. Carr, [1894] 3 Ch. 498 143 Mitchell v. City of London Assurance Co., 1888, 15 O.A.R. 262 373, 717, 718 Mitchell and Fraser, Re, 1917, 40 O.L.R. 389, 38 D.L.R. 597 353 Mitchell v. Kinnear, 1897, 1 N.B. Eq. 427 592, 673 Mitchell v. Saylor, 1901, 1 O.L.R. 458 583 Mitchell-Henry v. Norwich Union Life Insurance Society, [1918] 2 K.B. 67 503 Moffatt v. Thomson, 1851, 3 Gr. Ill 282, 412 Molden v. Magneta Time- Co., In re the Company, [1915] W.N. 318, 84 L.J. Ch. 814 330 Molphy, Re, Beckes v. Tiernan, 1896, 17 O.P.R. 247 440 Monk v. Benjamin, 1890, 13 O.P.R. 356 414 Monolithic Building Co., In re, Tacon v. The Company, [1915] 1 Ch. 643 128, 176 Monti v. Barnes, [1901] 1 K.B. 205 21 Montreal Trust Co. v. Boggs, 1915, 25 D.L.R. 432 238 Moody v. Matthews, 1801, 7 Ves. 174 91 Moore, Re, 1878, 8 O.P.R. 471 310- Moore v. Gibbon, In re Gibbon, [1909] 1 Ch. 367 267, 341 Moore v. Greg. 1848, 2 Ph. 717 ... 90 TABLE OF CASES Iv Moore v. Hobson, 1868, 14 Gr. 703 404, 507 Moore and Hulm's Contract, In re, [1912] 2 Ch. 105 86, 303 Moore v. Jackson, 1893, 22 Can. S.C.R. 210 297 Moore v. Painter, 1842, 6 Jur. 903 595 Moore v. Shelley, 1883, 8 App. Cas. 285 357, 584, 654 Moores v. Choat, 1839, 8 Sim. 508 90 Moran v. Currie, 1857, 8 U.C.C.P. 60 193 Morgan v. Dominion Permanent Loan Co., 1914, 50 Can. S.C.R. 485, 22 D.L.R. 163 27 Morgan v. Jeffreys, [1910] 1 Ch. 620 490 Morice v. kernighan, 1908, 18 M.R. 360 240 Morland v. Isaac, 1855, 20 Beav. 389 50 Morley v. Morley, 1858, 25 Beav. 253 192 Morrell and Chapman's Contract, In re, [1915] 1 Ch. 162 670 Morrison, In re, Jones v. Taylor, Cookes v. Morrison, [1914] 1 Ch. 50 23, 95 Morrison v. Robinson, 1872, 19 Gr. 480 434 Morrow v. Lancashire Insurance Co., 1899, 26 O.A..R. 173 720 Morton v. Woods, 1869, L.R. 4 Q.B. 293, L.R. 3 Q.B. 658 698, 699 Moss, In re, Levy v. Sewill, 1885, 31 Ch.D. 90 494, 606 Moss v. Gallimore, 1779, Doug 279, 18 RC 403 250, 252, 354, 357 Mountford v. Scott, 1823, Turn. & R. 274 80 Mowers Trusts, In re, 1869, L.R. 8 Eq. 110 248 Muchall v. Banks, 1862, 10 Gr. 25 231 Muller v. Schwalbe, Re Royal Bank and Banque d'Hochelaga, 1914, 8 A.L.R. 125, 19 D.L.R. 19 185 Mumford v. Collier, 1890, 25 Q.B.D. 279 704 Munro v. Waller, 1896, 28 O.R. 29 89 Munsen v. Hauss, 1875, 22 Gr. 279 384, 394. 454 Murchie v. Theriault, 1898, 1 N.B. Eq. 588 114 Murray v. Watkins, 1890, 62 L.T. 796 554 Music Hall Block, In re, Durable v. Mclntosh, 1884, 8 O.R. 225 280, 310 Muttlebury v. Stevens, 1886, 13 O.R. 29 603, 604 Muttlebury v. Taylor, 1892, 22 O.R. 312 333, 334 Mutual Life Assurance Co. v. Douglas, 1918, 57 Can. S.C.R. 243, 44 D.L.R. 115, reversing Douglas v. Mutual Life Assurance Co, 1918, 13 A.L.R. 18, 38 D.L.R. 459, 39 D.L.R. 601 161, 470, 485 Nanny v. Edwards, 1827, 4 Russ, 124 451 Nant-y-glo and Blaina Ironworks Co. v. Tamplin, 1876, 35 L.T. 125 205 National Bank of Australasia v. United Hand-in-Hand and Band of Hope Co., 1879, 4 App. Cas. 391. .589, 623, 624, 666, 669, 673 ^National Fire Insurance Co. v. McLaren, 1886, 12 O.R. 682 725 Ivi TABLE OF CASES. National Mercantile Bank Ex parte, In re Phillips, 1880, 16 Ch.D. 104 577 National Mercantile Bank v. Hampson, 1880, 5 Q.B.D. 177 577 National Provincial Bank of England v. Games, 1886, 31 Ch.D. 582 617, 619, 620 National Trust Co. v. Campbell, 1908, 17 M. R. 587. .378, 379, 446, 484 National Trust Co. v. Trusts and Guarantee Co., 1912, 26 O.L.R. 279 84 Neil v. Almond, 1897, 29 O.K. 63 624 Nelson v. Booth, 1857, 3 DeG. & J. 119 596 Nelson v. Cochrane, 1889, 13 O.P.R. 76 402 Nelson v. Page, 1868, L.R. 7 Eq. 25 273 Nesbitt v. Rice, 1864, 14 U.C.C.P. 409. 632 Nesbitt v. Tredennick, 1808, 1 Ball & B. 29 92 Neve v. Pennell, Hunt v. Neve, 1863, 2 Hem. & M. 170 138 Neveren v. Wright, 1917, 39 O.L.R. 397, 36 D.L.R. 734 194, 197 Nevitt v. McMurray, 1886, 14 O.A.R. 126 126 New, In re, Ex parte Farley, 1841, 1 Mont. D. & DeG. 683 80 New Brunswick Ry. Co. v. Kelley, 1896, 26 Can. S.C.R. 341, 33 N.B.R. 310 110 Newcomb v. Bonham, 1681, 1 Vern. 7 491 Newman v. Selfe, 1864, 33 Beav. 522 460 Newmarch, In re, Newmarch v. Storr, 1878, 9 Ch.D. 12 27? Nicholl v. Allenby, 1889, 17 O.R. 275 428 Nicholls v. Maynard, 1747, 3 Atk. 519, 18 R.C. 141 606 ' Nichols v. Watson, 1876, 23 Gr. 606 233 Nickle and Town of Walkerton, In re, 1886, 11 O.R. 433 359 Nioa v. Bell, 1901, 27 V.L.R. 82 198 Nisbet & Potts' Contract, In re, [1905] 1 Ch. 391 102 Noakes & Co. v. Rice, [1902] A.C. 24 6, 44, 45, 46, 48 Noble v. Campbell, 1911, 21 M.R. 597 237, 485 Noble v. Noble, 1912, 27 O.L.R. 342, 9 D.L.R. 735 308, 544 Norrish v. Marshall, 1821, 5 Madd. 475 198, 201 North British and Mercantile Insurance Co. v. London, etc. Co., 1877, 5 Ch.D. 569 726 North of Scotland Mortgage Co. v. German, 1880, 31 U.C.C.P. 349 339 North of Scotland Mortgage Co. v. Udell, 1882, 46 U.C.R. 511 . .56, 339 Northampton (Marquess of) v. Pollock, 1890, 45 Ch.D. 190, [1892] A.C. 1 45 Northern Counties of England Fire Insurance Co. v. Whipp, 1884, 26 Ch.D. 482, 10 R.C. 507 96 Northern Trusts Co. v. Battell, 1916, 9 S.L.R. 103, 29 D.L.R. 515. 132 Nottingham Permanent Benefit Society v. Thurston, [1903] A.C. 6, [1902] 1 Ch. 1 24 Noy v. Ellis, 1676, 2 Gas. in Ch. 220 216 Noyes v. Pollock, 1886, 32 Ch.D. 53 245, 580, 581. TABLE OF CASES Ivii Nugent v. Nugent, [1908] 1 Ch. 546 674 Nutt v. Easton, [1900] 1 Ch. 29 674 Ocean Accident and Guarantee Corporation v. Ilford Gas Co., [1905] 2 K.B. 493 256, 351, 360 O'Connor v. Charleson, 1916, 10 O.W.N. 35 749 Odell v. Bennett, 1889, 13 O.P.R. 10 418 O'Donohoe, Re, 1868, 4 O.P.R. 266 630 O'Donohoe v. Whitty, 1882, 2 O.R. 424, affirmed, 20 C.L.J. 146.. 660 O'Donohue v. Hembroff, 1873 9 U.C.L.J. 312 440 Oland v. McNeil, 1902, 32 Can. S.C.R. 23, 34 N.S.R. 453 53, 654 Oliver v. Hinton, [1899] 2 Ch. 264 97,. 99 Oliver v. McLaughlin, 1893, 24 O.R. 41 236 Omnium Securities Co. v. Canada Fire and Mutual Insurance Co., 1882, 1 O.R. 494 723 Onslow v. Wallis, 1849, 1 Mac. & G. 506 267 Orde v. Heming, 1686, 1 Vern. 418 5 Orford (Municipality) v. Bayley, 1868, 1 Chy Ch. (Ont.) 272 ... 402 Orme v. Wright, 1839, 3 Jur. 19 674 Orser v. Colonial Investment and Loan Co., 1917, 10 S.L.R. 349, 37 D.L.R. 47 485 Otter v. Lord Vaux, 1856, 6 DeG. M. & G. 638, 2 K. & J. 650. .339, 675 Owen, In re, [1894] 3 Ch. 220 389, 390, 524 Owen v. Crouch, 1857, 5 W.R. 545 621 Oxley v. Culton, 1899, 32 N.S.R. 256 120, 124 Paget v. Ede, 1874, L.R. 18 Eq. 118 54, 392, 487 Palmer v. Earl of Carlyle, 1823, 1 Sim. & St. 423, 18 R.C. 491 399 Palmer v. Hendrie, 1859, 27 Beav. 349 384, 454 Palmer v. McKnight, 1899, 31 O.R. 306 239 Palmer v. Winstanley, 1874, 23 U.C.C.P. 586 ,501, 502 Pambrun and Short, Re, 1914, 7 A.L.R. 314, 16 D.L.R. 193 496 Panama, New Zealand, and Australian Royal Mail Co., In re, 1870, L.R. 5 Ch. 318 82 Pannell v. Hurley, 1845, 2 Coll. 241 406 Parbola, In re, Blackburn v. Parbola, [1909] 2 Ch. 437 429 Parke v. Riley, 1866, 3 U.C.E. & A. 215 211 Parker, In re, Parker v. Parker, 1894, 24 O.R. 373 492, 614 Parker v. Calcraft, 1821, 6 Madd. 11 352 Parker v. Housefleld, 1834, 2 My & K. 419, 18 R.C. 497 418 Parker v. Vine Growers' Association, 1876, 23 Gr. 179 390 Parker v. Watkins, 1859, John. 133 621 Parker v. Willett, 1889, 22 N.S.R. 83 412 Parkinson v. Hanbury, 1867, L.R. 2 H.L. 1, 18 R.C. 411 581, 591, 657, 675 Parr v. Montgomery, 1880, 27 Gr. 521 264 Parsons v. Bank of Montreal, 1868, 15 Gr. 411 504 TABLE OF CASES. Parsons v. Queen Insurance Co., 1878, 29 U.C.C.P. 188 712 Patch v. Ward, 1867, L.R. 3 Ch. 203 451, 453 Patchell v. Colonial Investment and Loan Co., 1907, 3 N.B. Eq. 429 621 Paterson v. Holland, 1860, 8 Gr. 238 402 Patman v. Harland, 1881, 17 Ch.D. 353, 21 R.C. 752 Paton v. Wilkes, 1860, 8 Gr. 252 > 390 Patrick, In re, Bills v. Tatham, [1891] 1 Ch. 82 192 Patrick v. Walbourne, 1896, 27 O.K. 221 20, 132 Patterson v. Dart, 1911, 24 O.L.R. 609 587, 611 Patterson v. Gilbert, 1888, 12 O.P.R. 652 440 Patterson v. McLean, 1891, 21 O.R. 221 200, 206 Patterson v. Tanner, 1892, 22 O.R. 364 236, 672 Paul v. Johnson, 1866, 12 Gr. 474 585, 586, 589 Pawley v. Colyer, Colyer v. Colyer, 3 DeG. J. & Sm. 676 325 Paxton v. Smith, 1889, 18 O.R. 178 521 Pearce v. Marsh, In re Loveridge, [1904] 1 Ch. 518 216, 535 Pearce v. Morris, 1869, L.R. 5 Ch. 227 505 Pearman v. Hyland, 1862, 22 U.C.R. 202 208 Pearson v. Benson, 1860, 28 Beav. 598 653 Pease v. Fletcher, 1875, 1 Ch.D. 273 689 Peck v. Sun Life Assurance Co., 1905, 11 B.C.R. 215 ; . . . 198 Peebles v. Hyslop, 1914, 30 O.L.R. 511, 19 D.L.R. 654 110, 118, 119 'Peers v. Allen, 1872, 19 Gr. 98 .420, 499 Peers v. Ceeley, 1852, 15 Beav. 209 620 Pegg v. Independent Order of Foresters, 1901, 1 O.L.R. 97 700 Pegg v. Hobson, 1887, 14 O.R. 272 383, 683 Pegg v. Wisden, 1852, 16 Beav. 239 51 Pegge v. Metcalfe, 1856, 5 Gr. 628 264 Pelly v. Wathen, 1851, 1 DeG. M. & G. 16 .' 138 Penn v. Lockwood, 1850, 1 Gr. 547 434, 593 Penn v. Lord Baltimore, 1750, 1 Ves. Sen. 444, 1 W. & T.L.C. Eq. 800 391, 489 Penner v. Canniff, 1868, 1 Ch. Ch. (Ont.) 351 402 Penrhyn (Lord) v. Hughes, 1799, 5 Ves. '99 388 People's Loan and Deposit Co. v. Grant, 1890, 18 Can. S.C.R. 262 603, 604, 605 Perry v. Perry, 1884, 10 O.P.R. 275 664 Perry v. Walker, 1855, 24 L.J. Ch. 319 594 Peterkin v. McFarlane, 1881, 9 O.A.R. 429, 13 Can. S.C.R. 677. .118, 121 Peto v. Hammond, 1860, 29 Beav. 91 407 Petrie v. Hunter, 1884, 10 O.A.R. 127 243 Phillips, In re, Ex parte National Mercantile Bank, 1880, 16 Ch.D. 104 577 Phillips v. Gutteridge, 1859, 4 DeG. & J. 531 341 Phillips v. Hanna, Re, 1902, 3 O.L.R. 558 371, 600 Phillips v. Phillips, 1862, 4 DeG. F. & J. 208, 10 R.C. 533 94, 100 TABLE OF CASES lix Phillips v. Prout, 1898, 12 M.R. 143 45 Phillips v. Vaughan, 1685, 1 Vern. 335 201- Pierce v. Canada Permanent Loan Co., 1894, 23 O.A.R. 516, 25 O.K. 671 123, 148 Pierce v. Canavan, 1882, 7 O.A.R. 187 248 Pilcher v. Rawlins, 1872, L.R. 7 Ch. 259, 21 R.C. 728 97, 102, 103 Pile v. Pile, 1875, 23 W.R. 440 150 Pinhey v. Mercantile Fire Insurance Co., 1901, 2 O.L.R. 296... 713 Pipe v. Shafer, 1868, 1 Chy. Ch. (Ont.) 251 590 Pitman & Edwards, Ex parte, In re Hamilton's Windsor Iron- works, 1879, 12 Ch.D. 707 84 Pitt v. Cholmondeley, 1754, 2 Ves. Sen. 565 574 Platt v. Ashbridge, 1865, 12 Gr. 105 453 Platt v. Grand Trunk Ry. Co., 1886, 12 O.R. 119 359 Platt v. Mendel, 1884, 27 Ch.D. 246 339, 437 Pledge v. White, [1896] A.C. 187, 18 R.C. 264. .. .137, 139, 141, 143, 148 Plenderleith v. Parsons, 1907, 14 O^L.R. 619 602, 626 Plenderleith v. Smith, 1905, 10 O.L.R. 188 268, 399, 409 Plumpton v. Burkinshaw, [1908] 2 K.B. 572 693 Polglass v. Oliver, 1831, 2 Cr. & J. 15 498 Pollard, Ex parte, 1840, Mont. & Ch. 239 391 Poltimore v. Quicke, In re QuickC's Trusts, [1908] 1 Ch. 887 727 Pope, In re, 1886, 17 Q.B.D. 743, 10 R.C. 592 689 Pope v. Biggs, 1829, 9 B. & C. 245 256 Pope v. Onslow, 1692, 2 Vern. 286 137, 142 Popple v. Sylvester, 1882, 22 Ch.D. 98 603, 605 Portman v. Paul, 1864, 10 Gr. 458 403 Potter v. Edwards, 1857, 26 L.J. Ch. 468 45 Pottruff v. Tweedle (not reported) 646 Poulett v. Hill, [1893] 1 Ch. 277 367, 396 Powell v. Brodhurst, [1901] 2 Ch. 160 500 Powell v. London and Provincial Bank, [1893] 1 Ch. 610 ..... 104 Powell v. Peck, 1888, 15 O.A.R. 138 604, 605, 695 Powers, In re, Ldndsell v. Phillips, 1885, 30 Ch.D. 291 523 Powney v. Blomberg, 1844, 14 Sim. 179 498 Pratt v. Bunnell, 1891, 21 O.R. 1 285, 287 Pratt v. Hawkins, 1846, 15 M. & W. 399 550 Pressey v. Trotter, 1878, 26 Gr. 154 201 Preston v. Neele, 1879, 12 Ch.D. 760 50 Preston v. Tunbridge Wells Opera House, [1903] 2 Ch. 323 687 Pringle v. Hutson, 1909, 19 O.L.R. 652 196, 603, 611 Prittie v. Connecticut Fire Insurance Co., 1896, 23 O.A.R. 449 . . 720 Prout v. Cock, [1896] 2 Ch. 808 504 Prytherch, In re, Prytherch v. Williams, 1889, 42 Ch.D. 590 ... 507, 589, 687, 689 Public Trustee v. Lawrence, [1912] 1 Ch. 789 257 Ix TABLE OF CASES. Pugh v. Heath, 1882, 7 App. Cas. 235, 16 R.C. 389, affirming Heath v. Pugh, 1881, 6 Q.B.D. 345, 16 R.C. 376 353, 358, 449, 536, 552, 561 Punnett, Ex parte, In re Kitchin, 1880, 16 Ch.D. 226 20, 699, 700- Purdom v. Pavey, 1896, 26 Can. S.C.R. 412, reversing 23 O.A.R. 9. . 489 Purfly v. Parks, 1883, 9 O.P.R. 424 421 Quarrell v. Beckf ord, 1816, 1 Madd. 269 609, 692 Queen's College v. Claxton, 1894, 25 O.R. 282 328, 332, 625 Queen's Hotel, In re, [1900] 1 Ch. 792 626 Queensland Trustees v. Registrar of Titles, 1893, 5 Q.L.J. 46 168 Quicke's Trusts, In re, Poltimore v. Quicke, [1908] 1 Ch. 887.. 727 Raffety v. King, 1836, 1 Keen 601 562 Raggett, In re, Ex parte Williams, 1880, 16 Ch.D. 117 141 Rakestraw y. Brewer, 1728, 2 P. Wms. 510, Sel. Cas. in Ch. 55 92, 564 Ramsden v. Langley, 1706, 2 Vern. 536 621 Ramus v. Dow, 1893, 15 O.P.R. 219. 410 Ranney v. Stirrett, 1911, 4 S.L.R. 179 170 Rapson v. Hersee, 1869, 16 Gr. 685 52 Rathbun v. Culbertson, 1875, 22 Gr. 465 262 Raycraft, Re, 20 O.L.R. 437 219 Real Estate Investment Co. v. Metropolitan Building Society, 1883, 3 O.R. 476 206 Real Estate Loan Co. v. Guardhouse, Re, 1898, 29 O.R. 602 371 Real Estate Loan Co. v. Molesworth, 1886, 3 M.R. 116 415 Reddick v. Traders Bank of Canada, 1892, 22 O.R. 449 574, 682 Reed, In re, Ex parte Brown, 1878, 9 Ch.D. 389 , 669 Reed v. Wilson, Re, 1893, 23 O.R. 552 115 Rees v. Metropolitan Board of Works, 1880, 14 Ch'.D. 372 617 Reeve, In re, 1867, 4 O.P.R. 27 353 Reeve v, Attorney-General, 1741, 2 Atk. 223 392 Reeve v. Lisle, [1902] A.C. 401 56 Reeves v. Konschur, 1909, 2 S.L.R. 125 149, 343 Reid v. Wilson, 1881, 9 O.P.R. 166 600 Reinhardt v. Shutt, 1888, 15 O.R. 325 131, 404, 428 Rendall v. Darby, In re Darby's Estate, [1907] 2 Ch. 465... 243, 246 Rennie v. Quebec Bank, 1901, 1 O.L.R. 303 196 Renwick v. Berryman, 1886, 3 M.R. 387 244 Repington, In re, Wodehouse v., Scobell, [1904] 1 Ch. 811 246 Reynolds v. Allan, 1852, 10 U.C.R. 350 498 Reynolds v. Ashby & Son, [1904] A.C. 466 21, 23 Reynolds v. Foster, 1912, 3 D.L.R. 506, 3 O.W.N. 983 81 Rice v. George, 1872, 19 Gr. 174 587, 589 Rice v. Murray, 1884, 2 M.R. 37 437 Rice v. Rice, 1854, 2 Drew 73, 10 R.C. 507.. 85 TABLE OF CASES Ixi Richards v. Cooper, 1842, 5 Beav. 304 388 Richards v. Morgan, 1753, 4 Y. & C. Ex. 570 (appendix) 594 Richards v. Thompson, 1911, 4 S.L.R. 213 474 Richardson, In re, Ex parte Governors of St. Thomas's Hos- pital, [1911] 2 K.B. 705 237 Richardson v. Horton, 1843, 7 Beav. 112 150 Richardson v. Jackson, 1897, 34 N.B.R. 301 611 Richardson v. Langridge, 1811, 4 Taunt. 128, 25 R.C. 3 353 Richardson v. Younge, 1871, L.R. 6 Ch. 478, L.R. 10 Eq. 275 566, 567, 568 Richmond v. Evans, 1861, 8 Gr. 508 668 Ridout, In re, 1853, 2 U.C.C.P. 477 306 Rigney v. Fuller, 1853, 4 Gr. 198 460 Ritchie, Re, Sewery v. Ritchie, 1876, 23 Gr. 66 440 Roach v. McLachlan, 1892, 19 O.A.R. 496 124 Robert v. Caughell, 1903, 6 O.L.R. 381 463 Roberts, In re, 1880, 14 Ch.D. 49 604 Roberts v. Croft, 1857, 2 DeG. & J. 1 79 Re Robertson, 1876, 24 Gr. 442 286 Robertson, Re, Robertson v. Robertson, 1878, 25 Gr. 276, 486 282, 286 Robertson v. Burrill, 1895, 22 O.A.R. 356 520 Robertson v. Lockie, 1846, 15 Sim. 285 ,. 659 Robertson v. Norris, 1858, 1 Giff. 421 673 Robin Hood Mills v. Harrison, 1918, 40 D.L.R. 328 170 Robinson's Settlement, In re, Gant v. Hobbs, [1912] 1 Ch. 717.. 370 Robinson v. Chisholm, 1894, 27 N.S.R. 74 52 Robinson v. Dobson, 1865, 11 Gr. 357 421 Robinson v. Ford, 1914, 7 S.L.R. 443, 14 D.L.R. 360 177 Robinson v. Moffatt, 1916, 37 O.L.R. 42, 25 D.L.R. 462 171 Robinson v. Trevor, 1883, 12 Q.B.D. 423 312 Robock v. Peters, 1900, 13 M.R. 124 131 Robson v. Argue, 1878, 25 Gr. 407 429 Rochefoucault v. Boustead, [1897] 1 Ch. 196 52 Rodburn v. Swinney, 1889, 16 Can. S.C.R. 297 648 Roddam v. Morley, 1857, 1 DeG. & J. 1, 16 R.C. 273 520, 521 Roe v. Braden, 1877, 24 Gr. 589 119, 127 Rogers, In re, Ex parte Challinor, 1880, 16 Ch.D. 260 618 Rogers' Trusts, In re, 1860, 1 Dr. & S. 338 608 Rogers v. Challis, 1859, 27 Beav. 175, 18 R.C. 278 80, 618 Rogers v. Dickson, 1861, 10 U.C.C.P. 481 .. 359 Rogers v. Humphreys, 1835, 4 A. & E. 299 250, 252 Rogers v. Lewis, 1866, 12 Gr. 257 404, 507 Rogers v. Ontario Bank, 1891, 21 O.R. 416 21 Rogers v. Wilson, 1887, 12 O.P.R. 322, 545 331 Rolfe v. Chester, 1855, 20 Beav. 610 149, 150 Rolland v. Hart, 1871, L.R. 6 Ch. 678 100, 122 Ixii TABLE OF CASES. Rollefson v. Olson and the Mutual Life Assurance Co., 1915, 8 S.L.R. 143, 21 D.L.P, 671 365, 685 Rolph, Ex parte, In re Spindler, 1881, 19 Ch.D. 98 618 Rooker v. Hoofstetter, 1896, 26 Can. S.C.R. 41, 22 O.A.R. 175 75, 76, 114 Roscoe v. McConnell, 1913, 29 D.L.R. 121, 25 O.W.R. 149 51 Rose v. Page, 1829, 2 Sim. 471 388 Rose v. Peterkin, 1885, 13 Can. S.C.R. 677, 9 O.A.R. 429. .100, 118, 121 Rosebatch v. Parry, 1879, 27 Gr. 193 440 Ross & Davies, Re, 1904, 7 O.L.R. 433 29, 30, 31 Ross v. Hunter, 1882, 7 Can. S.C.R. 289 113 Ross v. Ross, 1892, 23 O.R. 43 392 Ross v. Scott, 1875, 21 Gr. 391, 22 Gr. 29 52 Ross v. Stevenson, 1877, 7 O.P.R. 126 138, 433 Ross & Phillips v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648 237, 527, 549 Rossiter, In re, Rossiter v. Rossiter, 1879, 13 Ch.D. 355 273 Rourke v. Robinson, [1911] 1 Ch. 480 301, 496, 497 Rowland v. Burwell, 1888, 12 O.P.R. 607 417 Roxburgh v. Cox, 1881, 17 Ch.D. 520 201 Royal Bank and Banque d'Hochelaga, Re, Muller v. Schwalbe, 1914, 8 A.L.R. 125, 19 D.L.R. 19 185 Royal Canadian Bank v. Kelly, 1869, 22 U.C.C.P. 279, 14 C.L.J. 8, reversing 19 U.C.C.P. 196, 20 U.C.C.P. 430 696 Rudge v. Richens, 1873, L.R. 8 C.P. 358 383, 683 Rumble v. Moore, 1868, 1 Ch. Ch. (Ont.) 59 402 Rumely and Registrar, S.L.R.D., In re, 1911, 4 S.L.R. 466 161 Rumney and Smith, In re, [1897] 2 Ch. 351 646 Rumsey v. Thompson, 1860, 8 Gr. 372 421 Rusden v. Pope, 1868, L.R. 3 Ex. 269 256 Rushworth's Case, 1676, Freem. Ch. 13 92 Russ v. Mills, 1859, 7 Gr. 145 578 Russel v. Russel, 1783, 1 Bro. C.C. 269, 2 W. & T.L.C. Eq. 85, 18 R. C. 26 78 Russell v Robertson, 1859, 1 U.C. Chy. Ch. 72 724 Russell v. Russell, 1881, 28 Gr. 419 124 Russell v. Smithies, 1792, 1 Anst. 96, 9 R.C. 508 594 Rutherford v. Mitchell, 1904, 15 M.R. 390 53, 564, 567 Rutherford v. Rutherford, 1896, 17 'O.P.R. 228 428 S ., Re, 1907. 14 O L.R. 536 291 Sadler v. Worley, [1894] 2 Ch. 170 74, 388, 389, 391, 450 St. John v. Rykert, 1884, 10 Can. S.C.R. 278 602, 603 St. Thomas's Hospital, Ex parte Governors of, In re Richard- son, [1911] 2 K.B. 705 237 Sale of Mortgaged Premises by Private Contract, Re, 1914, 5 W.W.R. 1328 ..479 TABLE OF CASES Ixiir Salmon v. Dean, 1851, 3 Mac. & G. 344 201, 252 Saloway v. Strawbridge, 1885, 1 K. & J. 371, 7 DeG. M, & G. 594. . 648 Salt v. Marquess of Northampton, [1892] A.C. 1 39, 41, 45, 50, 606, 611 Salter v. The Company, In re Leas Hotel Co., [1902] 1 Ch.' 332 690 Saltman v. McColl, 1910, 19 M.R. 456 474 Samis v. Ireland, 1879, 4 O.A.R. 118 260, 262, 263, 265 Sampson v. Pattison, 1842, 1 Hare 533 389 Samuel v. Jarrah Timber and Wood Paving Corporation, [1904] A.C. 323 39, 46, 48 Samuel Allen & Sons, In re, [1907] 1 Ch. 575 - 23, 94 Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533 537, 544, 559 Sanders v. Sanders, 1881, 19 Ch.D. 373 547, 567 Sanderson v. Ince, 1859, 7 Gr. 383 658 Sandon v. Hooper, 1843, 6 Beav. 246 585, 622 Sands v. Standard Insurance, 1879, 26 Gr. 113, 27 Gr. 167 713 Sands v. Thompson, 1883, 22 Ch.D. 614 556 Sangster v. Cochrane, 1884, 28 Ch.D. 298 313 Sanguinetti v. Stuckey's Banking Co., [1896] 1 Ch. 502 417 Santlcy v. Wilde, [1899] 2 Ch. 474, reversing [1899] 1 Ch. 747. . 6, 45, 652 Sargant v. Read, 1876, 1 Ch.D. 600 689 Sargent, Ex parte, In re Tahiti Cotton Co., 1874, L.R. 17 Eq. 273 191 Saunders v. Milsome, 1866, L.R. 2 Eq. 573 81 Savile v. Drax, In re Drax, [1903] 1 Ch. 781 599 Sawyer v. Robertson, 1900, 19 O.P.R. 172 366, 396 Sawyer and Massey v. Waddell, 1904, 6 N.W.T.L.R. 45 76 Scarlett v. Birney, 1893, 15 O.P.R. 283 464 Schlosser v. Colonial Investment Co., 1916, 9 S.L.R. 382 172 Scholefield v. Lockwood, 1863, 11 W.R. 555 575 Schwartz v. Williams, 1915, 35 O.L.R. 33, 27 D.L.R. 733. .378, 382, 496 Sclater v. Cottam, 1857, 3 Jur. N.S. 630 629 Scobie v. Collins, [1895] 1 Q.B. 375 705 Scott v. Crinnian, 1918, 43 O.L.R. 430, 44 D.L.R. 20 '. . 730 Scott v. Morley, 1887, 20 Q.B.D. 120 374 Scott v. Supple, 1893, 23 O.R. 393 269, 273 Scott v. Swanson, 1907, 39 Can. S.C.R. 229, affirming Federal Life Assurance Co. v. Stinson, 1906, 13 O.L.R. 127 148, 442 Scott v. Vosburg, 1880, 8 O.P.R. 336 57S Scottish American Investment Co. v. Brewer, 1901, 2 O.L.R. 369 . . 452 Scottish American Investment Co. v. Prittie, 1893, 20 O.A.R. 398. 405 Scottish American Investment Co. v. Tennant, 1890, 19 O.R. 263 . . 13& Scottish Temperance Life Assurance Co. v. District Registrar of Titles, 1917, 24 B.C.R. 232, 36 D.L.R. 152 485 Scully v. Robertson, 1894, 30 C.L.J. 472 501 Scully v. Tracy, In re Tracy, 1894, 21 O.A.R. 454 501 Ixiv TABLE OF CASES. Searle v. Choat, 1884, 25 Ch.D. 723 688 Searles v. Sadgrave, 1855, 5 E. & B. 639 498 Security Lumber Co. v. Duplat, 1916, 9 S.L.R. 318, 29 D.L.R. 460 132 Seear v. Lawson, 1880, 15 Ch.D. 426 231 Seeley v. Caldwell, 1908, 18 O.L.R. 472 24 Selby v. Pomfret, 1861, 3 DeG. F. & J. 595 . . . .139, 143 Selwyn v. Garflt, 1888, 38 Ch.D. 273 650, 659 Senhouse v. Earl, 1752, 2 Ves. Sen. 449 449 Sewery v. Ritchie, Re Ritchie, 1876, 23 Gr. 66 440 Sharp v. Rickards, [1909] 1 Ch. 109 140 Sharpe v. Foy, 1868, L.R. 4 Ch. 35 100 Shaver v. Sproule, 1913, 4 O.W.N. 968, 9 D.L.R. 641 237 Shaw v. Bailey, 1907, 17 M.R. 97 177 Shaw v. Bunny, 1865, 2 DeG. J. & S. 468 675 Shaw v. Coulter, 1905, 11 O.L.R. 630 567 Shaw v. Foster, 1872, L.R. 5 H.L. 340 79 Sheffield Union Banking Co., Ex parte, In re Carter and Justins, 1865, 13 L.T. 477 78 Shepard v. Jones, 1882, 21 Ch.D. 469 ' 574, 585, 589 Shepard and Rosevear and Moyes Chemical Co._ Re, 1918, 42 O.L.R. 184 742, 747 Shields v. Shields, 1918, 43 O.L.R. 117 662 Shore, Re, 1890, 6 M.R. 305 667 Shore v. Green, 1890, 6 M.R. 322 178 Short v. Graham, 1908, 7 W.L.R. 787 53, 239 Shotbolt, Re, 1888, 1 B.C.R. part 2, 337 152 Shove v. Pincke, 1793, 5 T.R. 124 9 Shuttleworth v. Laycock, 1684, 1 Vern. 244 '. 137 Sichel v. Mosenthal, 1862, 30 Beav. 371, 18 R.C. 282 ..80, 618 Siemens v. Dirks, 1913, 23 M.R. 581, 14 D.L.R. 149 117 Silverthorn v. . Glazebrook, 1899, 30 O.R. 408 138, 407 Simonton v. Graham, 1881, 8 O.P.R. 495 604 Simpson v. Dolan, 1908, 16 O.L.R. 459 243 Simpson v. Home, 1880, 28 Gr. 1 626 Simpson v. Smyth, 1846-7, 1 U.C.E. & A. 9, 172, sub nom. Smyth v. Simpson, 1859, 7 Moo. P.C. 205, 5 Gr. 104 58, 59, 60, 61, 505 Simpson, 1859, 7 Mos. P.C. 205, 5 Gr. 104 58, 59, 60, 61, 505 Sinnott v. Bowden, [1912] 2 Ch. 414 727 Skae v. Chapman, 1874, 21 Gr. 534 488 Skelton v. London and North Western Ry. Co., 1867, L.R. 2 C.P. 631 " 716 Slade v. Rigg, 1843, 3 Hare 35 388 Small v. Thompson, 1897, 28 Can. S.C.R. 219 236 Smart v. McEwan, 1871, 18 Gr. 623 203 Smith, Ex parte, In re Hildyard, 1842, 2 Mont. D. & DeG. 587.. 208 .Smith, In re, Hannington v. True, Giles v. True, 1886, 33 Ch.D. 195 . 273 TABLE OF CASES ixv smith, In re, Lawrence v. Kitson, [1916] 2 Ch. 206 75 Smith v. Deal, 1894, 25 O.R. 368 620 Smith v. Brown, 1890, 20 O.R. 165 523, 665 Smith v. Chichester, 1842, 2 Dr. & W. 393, 18.R.C. 128, 1 Conn. & Law 486 19, 91 Smith v. Columbia Insurance Co., 1851, 17 Penn. 253 725 Smith v. Darling, 1917, 55 Can. S.C.R. 82, 36 D.L.R. 1, affirming 36 O.L.R. 587, 32 D.L.R. 307 505, 535, 560, 561 Smith v. Eggington, 1874, L.R. 9 C.P. 145 256 Sovereign Fire Insurance Co. v. Peters, 1885, 12 Can. S.C.R. 33. . 713 Smith v. Green, 1844, 1 Coll. 234 325 Smith v. Hall, 1878, 9 Ch.D. 143 528 Smith v. Hunt, 1901, 2 O.L.R. 134, 4 O.L.R. 653 507 Smith v. Lloyd, 1854, 9 Exch. 562, 16 R.C. 328 537 Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698, affirming 20 M.R. 522 155, 161, 185, 187, 190, 194, 467, 469, 571, 685 Smith v. Pears, 1897, 24 O.A.R. 82 240, 241 Smith v. Smith, 1835, 1 Y. & C. Ex. 338 77 Smith v. Smith, 1852, 3 Gr. 451 282 Smith v. Smith, [1891] i3 Ch. 550, 18 R.C. 119 493 Smith v. Spears, 1892, 22 O.R. 286 670, 671 Smith v. Watts, In re Watts, 1882, 22 Ch.D. 5 624 Smithett v. Hesketh, 1890, 44 Ch.D. 161 330, 437 Smyth v. Martin, 1898, 18 O.P.R. 227 416 Smyth v. Simpson, 1859, 7 Moo. P.C. 205, 5 Gr. 104, affirming Simpson v. Smyth, 1846-7, 1 U.C.E. & A. 9, 172 58, 59, 60, 61, 505 Sneyd, In re, Ex parte Fewings, 1883, 25 Ch.D. 338 605, 618, 619 Solomon and Meagher's Contract, In re, 1889, 40 Ch.D. 508... 81, 677 South of England Dairies v. Baker, [1906] 2 Ch. 631 90 Sovereign Bank v. International Portland Cement Co., 1907, 14 O.L.R. 511 196 Sparks v. Redhead, Cameron v. McRae, 1852, 3 Gr. 311 389 Spindler, In re, Ex parte Rolph, 1881, 19 Ch.D. 98 618 Spooner v. Sandilands, 1842, 1 Y. & C. Ch. Cas. 390 76 Squire v. Pardoe, 1891, 66 L.T. 243 624 Stack v. Eaton, 1902, 4 O.L.R. 335 21 Stamford, Spalding and Boston Banking Co. v. Smith, [1892] 1 Q.B. 765, 16 R.C. 165 520 Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46 285, 413, 415, 506 Standard Reliance Mortgage Corporation v. Stubbs, 1917, 55 Can. S.C.R. 422, 38 D.L.R. 435, reversing 27 M.R. 276, ' 32 D.L.R. 57 601 Standard Trusts Co. v. Hurst, 1914, 24 M.R. 185. 16 D.L.R. 473. . 608 .Stanfield v. Hobson, 1852, 3 D<;G. M. & G. 620, affirming 16 Beav. 236 . . 567 Ixvi TABLE OF CASES. Stanhope v. Manners, 1763, 2 Eden 197 389 Stanley v. Grundy, 1883, 22 Ch.D. 478, 3 R.C. 569 582, 700 Stapilton v. Stapilton, 1739, 1 Atk. 2, 1 W. & T.L.C. Eq. 234 42 Stapleford Colliery Co., In re, Barrow's Case, 1880, 14 Ch.D. 432 103 Stark v. Reid, 1895, 26 O.K. 257 335, 336, 337, 624 Stark v. Somerville, 1917, 40 O.L.R. 374, affirmed, 1918, 41 O.L.R. 591, 41 D.L.R. 496 , 521 Steeds v. Steeds, 1889, 22 Q.B.D. 537 500 Steers v. Rogers, [1893] A.C. 232 231, 594 Steinhoff v. Brown, 1865, 11 Gr. 114 593, 688 Stephen v. Bannan and Gray, 1913, 6 A.L.R. 418, 14 D.L.R. 333 . . 185 Stephens v. Simpson, 1866, 12 Gr. 493 400 Sterling v. Riley, 1862, 9 Gr. 343 435 Sterling Lumber Co. v. Jones, 1916, 36 O.L.R. 153, 29 D.L.R. 288 130 Sterne v. Beck, 1863, 1 DeG. J. & S. 595 378 Stevens' Will, In re, 1868, L.R. 6 Eq. 597, 18 R.C. 238 217 Stevens v. Mid-Hants Ry. Co., 1873, L.R. 8 Ch. 1064 347 Stevens v. Theatres, [1903] 1 Ch. 857 662 Stewart v. Edwards, Re, 1905, 11 O.L.R. 378 374 Stewart v. Ferguson, 1899, 31 O.R. 112 . : 604 Stewart v. Rowson, 1892, 22 O.R. 533 658, 669 Stikeman v. Fummerton, 1911, 21 M.R. 754 .' 702 Stinson v. Pennock, 1868, 14 Gr. 604 727 Stockton Iron Furnace Co., In re, 1879, 10 Ch.D. 335.. 699, 700, 702 Stoddart v. Union Trust, [1912] 1 K.B. 181 206 Stone v. Lickorish, [1891] 2 Ch. 363 624, 629 Stothers v. Borrowman, 1916, 38 O.L.R. 12, 33 D.L.R. 179 196 Strachan v. Murney, 1858, 6 Gr. 378 446, 609 Strange v. Bedford, 1887, 15 O.R. 145. , .. 392 Street v. Commercial Bank of the Midland District, 1844, 1 Gr. 169 114 Street v. Dolan, 1871, 3 Chy. Ch. (Ont.) 227 402 Street v. O'Reilly, 1868, 2 Chy. Ch. (Ont.) 270 451 Strode v. Russel, 1708, 2 Vern. 621 216 Strong v. Carlyle Press, [1893] 1 Ch. 268 687 Sturgess v. Bitner, 1861, 11 U.C.C.P. 102 206 Sun Life Assurance Co. and Widmer, Re, 1916, 26 D.L.R. 147 470, 478, 685 Superior Savings and Loan Society v. Lucas, 1879, 44 U.C.R. 106 355 Sutton v. Sutton, 1882, 22 Ch.D. 511, 16 R.C. 298 367, 516, 523 Swan v. Wheeler, 1909, 2 S.L.R. 269 200 Sweny v. Smith, 1869, L.R. 7 Eq. 324 499 Swift v. Minter, 1879, 27 Gr. 217 460 Sydie v. Saskatchewan and Battle River Land and Development Co., 1913, 6 A.L.R. 388, 14 D.L.R. 51 177 Syndicat Lyonnais du Klondyke v. McGrade, 1905, 36 Can. S.C.R. 251 .177 TABLE O^ CASES btvii Tacon v. Monolithic Building Co., In re Monolithic Building Co., [1915] 1 Ch. 643 128, 176 Tadman v. Henman, [1893] 2 Q.B. 168 706 Tahiti Cotton Co., In re, Ex parte Sargent, 1874, L.R. 17 Eq. 273 191 Talbot v. Braddil, 1688, 1 Vern. 394 5 Tanner v. Heard, 1857, 23 Beav. 555, 18 R.C: 458 682 Tanner v. Smart, 1827, 6 B. & C. 603, 16 R.C. 160 520 Tanqueray-Willaume and Landau, In re, 1882, 20 Ch.D. 476 32 Tarn v. Turner, 1888, 39 Ch.D. 456 255, 408, 504, 505, 658 Tasker v. Small, 1837, 3 My. & Cr. 63 505 Tassel v. Smith, 1858, 2 DeG. & J. 713 .' 13& Taylor v. Davies, 1917, 41 O.L.R. 403 525, 545 Taylor v. London and County Banking Co., [1901] 2 Ch. 231 94, 99, 101, 104 Taylor v. Mostyn, 1886, 33 Ch.D. 226 595 Taylor v. Russell, [1892] A, C. 244, [1891] 1 Ch. 8, 10 R.C. 544 103, 104, 191 Tebb v. Hodge and Cutten, 1869, L.R. 5 C.P. 73, 18 R.C. 16 76 Teeter v St. John, 1863, 10 Gr. 85 415 Teevan v. Smith, 1882, 20 Ch.D. 724 , 302, 326, 327, 328, 329, 331, 332, 490, 508 Tennant v. Trenchard, 1869, L.R. 4 Ch. 537 390, 465 Teulon v. Curtis, 1832, Younge 610 4, 5 Thibodo v. Collar, 1850, 1 Gr. 147 389 Thomas v. Cameron, 1885, 8 O.R. 441 701 Thomas v. Girvan, 1897, 1 N.B. Eq. 257 612, 624 Thomas v. Thomas, 1856, 22 Beav. 341 149 Thompson, In re, Ex parte Williams, 1877, 7 Ch.D. 138 .702 Thompson v. Bergland, 1910, 3 S.L.R. 470 479 Thompson v. Bowyer, 1863, 9 Jur. N.S. 863 566 Thompson v. Drew, 1855, 20 Beav. 49 599 Thompson v. Holman, 1880, 28 Gr. 35 668, 669 Thompson and Holt, In re, 1890, 44 Ch.D. 492 659 Thompson v. Hudson, 1870, L.R. 10 Eq. 497 598 Thompson v. Thompson, 1904, 37 N.S.R. 242 414 Thompson v. Warwick, 1894, 21 O.A.R. 637 333 Thomson v. Hamilton, 1835, 5 U.C.O.S. Ill 498 Thomson v. O'Toole, 1888, 21 N.S.R. 1 611 Thomson v. Stikeman, 1913, 30 O.L. 123, 17 D.L.R. 205, affirming 29 O.L.R. 146, 14 D.L.R. 97 233 Thomson v. Willson, 1915, 51 Can. S.C.R. 307, 23 D.L.R. 468, varying Willson v. Thomson, 1914, 31 O.L.R. 471, 19 D.L.R. 593 ..381, 390, 447 Thorn v City Rice Mills, 1889, 40 Ch.D. 357 376 Thornbrough v. Baker, 1677, 1 Cas. in Ch. 283, 2 W. & T. L.C. Eq. 1, S.C. sub nom. Thornborough v. Baker, 3 Swanst. .628, 2 Freeman 143, 18 R.C. 231 36, 37, 52, 455 ixviil TABLE OF CASES. Thome v. Cann, [1895] A.C. 11, 18 R.C. 552 339, 340, 343, 347 Thome v. Heard & Marsh, [1895] A.C. 495 99, 517, 545 Thornhill v. Manning, 1851, 1 Sim. N.S. 451 452 Thornton v. France, [1897] 2 Q.B. 143 127, 550 Thorpe, In re, 1868, 15 Gr. 76 316 Three Towns Banking Co. v. Maddever, In re Maddever, 1884, 27 Ch.D. 523 487 Threlfall, In re, 1880, 16 Ch.D. 274 699 Threlfall v. Wilson, 1883, 8 P.D. 18 401 Thuresson, In re, 1902, 3 O.L.R. 271 385 Thru-low v. Mackeson, 1868, L.R. 4 Q.B. 97 672, 683 Tiffany v. Clarke, 1858, 6 Gr. 474 193 Tighe v. Dolphin, [1906] 1 I.R. 305 248 Tillett v. Nixon, 1883, 25 Ch.D. 238 689 Tilling v. Blythe, [1899] 1 Q.B. 557 432 Todd v. Linklater, 1901, 1 O.L.R. 103 140, 379, 447, 652 Tolhurst, Re, 1906, 12 O.L.R. 45 291 Tolhurst v. Associated Cement Manufacturers, [1903] A.C. 414.. 197 Toller v. Carteret, 1705, 2 Vern. 494 392 Tom Gung v. Fong Lee, 1915, 48 N.S.R. 317, 22 D.L.R. 809 110 Toms v. Wilson, 1862, 4 B. & S. 442 501 Topham v Booth, 1887, 35 Ch.D. 607 526 Toronto (City of) v. Jarvis, 1895, 25 Can. S.C.R. 237 121 Toronto General Trusts Corporation v. The King, 1917, 56 Can. S.C.R. 26 158 Toronto General Trusts Corporation v. Ritchie, 1915, 8 O.W.N. 328 746 Totten v. Douglas, 1869, 15 Gr. 126, 16 Gr. 243 203 Totten v. Watson, 1870, 17 Gr. 233 608 Toulmin v. Steere, 1817, 3 Mer. 210 342, 346, 347 Towerson v. Jackson, [1891] 2 Q.B. 484 256, 257 Tracy, In re, Scully v. Tracy, 1894, 21 O.A.R. 454 501 Tracy v. Lawrence, 1854, 2 Dr. 403 659 Traders Bank v. Murray, Re Hague, 1887, 14 O.R. 660 288 Travato v. Dominion Canners, 1916, 35 O.L.R. 295, 26 D.L.R. 507 550 Trent v. Hunt, 1853, 9 Ex. 14 255 Trimleston (Lord) v. Hamill, 1810, 1 Ball & B. 377 582, 589 Trinidad Asphalte Co. v. Coryat, [1896] A.C. 587 119 Trinity College v. Hill, 1884, 10 O.A.R. 99, 8 O.R. 286 452, 454 Trotter and Douglas v. Calgary Fire Insurance Co., 1910, 3 A.L.R 12 ; . . . . V714 Trough ton v. Trough ton, 1748, 1 Ves. Sen. 86 150 Trulock v. Robey, 1841, 12 Sim. 402 566 Truman & Co. v. Redgrave, 1881, 18 Ch.D. 547 689, 690 Trust and Loan Co. v. Cuthbert, 1868, 14 Gr. 410 261 Trust and Loan Co. v. Gallagher, 1879, 8 O.P.R. 97 310 TABLE OF CASES Ixix Trust and Loan Co. v. Kirk, 1880, 8 O.P.R. 203 609 Trust and Loan Co. v. Lawrason, 1882, 10 Can. S.C.R. 679, affirm- ing 6 O.A.R. 286 696, 697, 702, 704, 707 Trust and Loan Co. v. McGillivray, 1878, 7 O.P.R. 318 621 Trust and Loan Co. v. McKenzie, 1896, 23 O.A.R. 167 243 Trust and Loan Co. v. Stevenson, 1892, 20 O.A.R. 66 526, 536, 549 Trustees, Executors, and Agency Co. v. Short, 1888, 13 App. Cas. 793 537 Trusts and Guarantee Co. v. Abbott Mitchell Iron and Steel Co., 1902, 11 O.L.R. 403 84 Trusts and Guarantee Co. v. The King, 1916, 54 Can. S.C.R. 107, 32 D.L.R. 469, affirming 15 Can. Ex. R. 403, 26 D.L.R. 129, 218 Trusts Corporation of Ontario and Boehmer, In re, 1894, 26 O.R. 191 ... 124 Trusts Corporation of Ontario v. Hood, 1896, 23 O.A.R. 589 207 Trusts Corporation of Ontario v. Rider, 1897, 24 O.A.R. 157, 27 O.R. 593 196 Tucker v. Armour, 1906, 6 N.W.T.L.R. 388 178 Turley v. Williamson, 1865, 15 U.C.C.P. 538 550 Turner v. Clark, 1909, 2 S.L.R. 200 181 Turner v. Hancock, 1882, 20 Ch.D. 303. 623 Turner v. Smith, [1901] 1 Ch. 213 197 Turner v. Walsh, [1909] 2 K.B. 484 254,359 Tweedale v. Tweedale, 1857, 23 Beav. 341 138 Tylee v. Hinton, 1878, 3 O.A.R. 53 378, 446 Tyler v. Lake, 1832, 4 Sim. 53 343 Tyrwhitt v. Tyrwhit, 1863, 32 Beav. 244 340 Underwood, In re, 1857, 3 K. & J. 745 319 Underhay v. Read, 1887, 20 .Q.B.D. 209 f 688 Union Assurance Co., Re, 1893, 23 O.R. 627 ' 139, 720 Union Bank of Canada v. Bates, 1914, 24 M.R. 619, 18 D.L.R. 269 675 Union Bank of Canada v. Engen, 1917, 10 S.L.R. 185, 33 D.L.R. 435 687 Union Bank of Canada v. Lumsden Milling Co., 1915, 8 S.L.R. 263, 23 D.L.R. 460 172 Union Bank of Canada v. Taylor, 1915, 33 O.L.R. 255, 23 D.L.R. 679 124 Union Bank of Halifax v. Indian and General Investment Trust Co., 1908, 40 Can. S.C.R. 510 84, 102 Union Bank of London v. Ingram, 1880, 16 Ch.D. 53.. 588, 597, 606 Union Bank of London v. Ingram, 1882, 20 Ch.D. 463 -458 Union Bank of Scotland v. National Bank of Scotland, 1886, 12 App. Cas. 53 122 Uren v. Confederation Life Association, 1917, 40 O.L.R. 536 . .653, 670 Vacuum Oil Co. v. Ellis, [1914] 1 K.B. 693 254, 351, 686, 687 Ixx TABLE OF CASES. Valletort Sanitary Steam Laundry Co., In re, Ward v. Valletort, [1903] 2 Ch. 654 84 Valpy, In re, [1906] 1 Ch. 531 273 Van Gelder, Apsimon & Co. v. Sowerby Bridge United District Flower Co., 1890, 44 Ch.D. 374 359 Vandelinder v. Vandelinder, 1864, 14 U.C.C.P. 129 77 Vanluven and Walker, Re, 1900, 19 O.P.R. 216 628 Vernon v. Bethell, 1762, 2 Eden 110 45 Vining, In Re, Ex parte Hooman, 1870, L.R. 10 Eq. 63 594 Vint v. Padget, 1858, 2 DeG. & J. 611 143 Voisey, Ex parte, In re Knight, 1882, 21 Ch.D. 442. .698, 699, 702, 706 Vousden v. Hopper, 1911, 4 S.L.R. 1 708 Waddell v. McColl, 1868, 14 Gr. 211 593, 606 Wade v. Paget, 1784, 1 Bro. C.C. 363 677 Wafer v. Taylor, 1852, 9 U.C.R. 609 577, 578 Wakefield and Barnsley Union Bank v. Yates, [1916] 1 Ch. 452 544, 559 Wales v. Carr, [1902] 1 Ch. 860 617, 618 Walhampton Estate, In re, 1884, 26 Ch.D. 391 144 Walker v. Dickson, 1892, 20 O.A.R. 96 234, 235, 407 Walker v. Jones, 1866, L.R. 1 P.C. 50 301, 496 Walker v. Linom, [1907] 2 Ch. 104 97 Wallace v. Kelsall, 1840, 7 M. & W. 264 . . 500 Wallace v. Smart, 1912, 22 M.R. 68, 1 D.L.R. 70 170 Wallbridge v. Martin, 1868, 2 Chy. Ch. (Ont.) 275 429 Wallingford v. Mutual Society, 1880, 5 App. Gas. 685 606 Wallis, In re, Ex parte Jenks, [1902] 1 K.B. 719 79 Wallis, In re, Ex parte Lickerish, 1890, 25 Q.B.D. 176 588, 622, 629 Walters v. Northern Coal Mining Co., 1855, 5 DeG. M. & G. 629. . 91 Wanty v. Robins, 1888, 15 O.R. 474 131 Ward v. Carttar, 1865, L.R. 1 Eq. 29 497, 563 Ward v. Duncombe, [1893] A.C. 369 94 Wardle v. Oakley, 1864, 36 Beav. 27 79 Waring v. Ward, 1802, 7 Ves. 332 234 Warner v. Don, 1896, 26 Can. S.C.R. 388 21 Warner v. Jacob, 1882, 20 Ch.D. 220, 18 R.C. 452 666, 680 Warnock v. Prieur, 1887, 12 O.P.R. 264 419 Warren v. Taylor, 1862, 9 Gr. 59 434 Warwick v. Sheppard, 1917, 39 O.L.R. 99, 35 D.L.R. 98. .131, 132, 133 Wason v. Carpenter, 1867, 13 Gr. 329 579 Wasson v. Harker, 1912, 5 S.L.R. 364, 8 D.L.R. 88 379, 429, 472, 484 Waterloo Manufacturing Co. v. Holland, 1917, 10 S.L.R. 300, 36 D.L.R. 216 586 Waterous Engine Works Co. v. Livingstone, 1904, 7 O.L.R. 740.. 314 Waterous Engine Works v. Wells and Bank of Montreal, 1911, 4 S.L.R. 48 .701 TABLE OF CASES bnci Waters v. Shade, 1851, 2 Gr. 457 505 Wai-kins v. McKellar, 1859, 7 Gr. 584 ."* 675 Watling v. Lewis, [1911] 1 Ch. 414 370 Watson v. Dowser, 1881, 28 Gr. 478 129 Watson v. Mid-Wale? Railway Co., 1867, L.R. 2 C.P. 593 145, 202 Watt v. Feader, 1862, 12 U.C.C.P. 254 193 Watts, In re, Smith v. Watts, 1882, 22 Ch.D. 5 624 Watts v. Symes, 1851, 1 DeG. M. & G. 240 138, 142, 343, 347 Wayne v. Hanham, 1851, 9 Hare 62 388 Webb, In re, Lambert v. Still, [1894] 1 Ch. 73 574 Webb v. Crosse, [1912] 1 Ch. 323 ; 497, 626 Webb v. Smith, 1885, 30 Ch.D. 192 244.247 Webber v. O'Neil, 1864, 10 Gr. 440 232 Wegg Prosser v. Evans, [1894] 2 Q.B. 101, [1895] 1 Q.B. 108. .605, 704 Weidman v. McClary Mfg. Co., 1917, 10 S.L.R. 142, 33 D.L.R. 672, 171, 172 Weir v. Niagara Grape Co., 1886, 11 O.R. 700 113 Wellden v. Rallison, 1656, 1 Rep. in Ch. 171 40 Wells v. Trust and Loan Co. of Canada, 1884, 9 O.R. 170 620 Werthe v. Davie, 1916, 11 A.L.R. 46, 32 D.L.R. 384 473 West v. Fritche, 1848, 3 Exch. 216 698, 704 West v. Jones, 1851, 1 Sim. N.S. 205 624 West v. Williams, [1899] 1 Ch. 132 124, 125 West of England Fire Insurance Co. v. Isaacs, [1897] 1 Q.B. 226 723 West London Commercial Bank v. Reliance Permanent Building Society, 1885, 29 Ch.D. 954 330 Western Assurance Co. v. Temple, 1901, 31 Can. S.C.R. 373 713 Western Canada Loan and Savings Co. v. Court, 1877, 25 Gr. 151 682 Western Wagon Co. v. West, [1892] 1- Ch. 271 618, 619 Westmoreland, etc., Slate Co. v. Fielden, [1891] 3 Ch. 15 704 Wetherell, Ex parte, 1805, 11 Ves. 398, 18 R. C. 35 79 Whaley v. Linnenbank, 1916, 36 O.L.R. 361, 29 D.L.R. 51 132 Wheatley v. Silkstone and Haigh Moor Coal Co., 1885, 29 Ch.D. 715 84 Wheeler v. Brooke, 1894, 26 O.R. 96 331, 332 Wheeler v. Montefiore, 1841, 2 Q.B. 133 360 Whitcomb v. Minchin, 1820, 5 Madd. 91 674 White v. City of London Brewing Co., 1889, 42 Ch.D. 237 585, 589, 591 White v. Metcalfe, [1903] 2 Ch. 567 691, 692 Whiteley v. Delaney, [1914] A.C. 132, reversing Manks v. White- ley, [1912] 1 Ch. 735, and restoring [1911] 2 Ch. 448 245, 339, 341, 342, 345, 346 Whitfield v. Roberts, 1861, 7 Jur. N.S. 1268 454 Whitley v. Challis, [18921 1 Ch. 64 690 Ixxii TABLE OF CASES. Whitlow v. Stimson, 1909, 14 B.C.R. 321 51 Whitting, In re, Ex parte Hall, 1879, 10 Ch.D. 615 73 Wickens, Ex parte, [1898] 1 Q.B. 543 382, 490 Wickcns v. Shuckburgh, 1898, 78 L.T. 213 382 Wigan v. English and Scottish Law Life Assurance Association, [1909] 1 Ch. 291 34 Wightman v. Fields, 1872, 19 Gr. 559 61 Wigle v. Setterington, 1872, 19 Gr. 512 231 Wiley v. Ledyard, 1883, 10 O.P.R. 182 417, 576, 587 Wilgress v. Crawford, 1888, 12 O.P.R. 658 422 Wilkes v. Boddington, 1707, 2 Vern. 599 104 Wilkes v. Collin, 1869, L.R. 8 Eq. 338 340 Wilkins v. McLean, 1885, 10 O.R. 58, reversed 13 O.A.R. 467, restored sub nom. McLean v. Wilkins, 1887, 14 Can. S.C.R. 22 592 Wilkinson v. Candlish, 1854, 5 Ex. 91 501 Wilkinson v. Grant, 1856, 18 C.B. 319 618 Wilkinson v. Hall, 1837, 3 Bing. N.C. 508 357 Williams, Ex parte, In re Raggett, 1880, 16 Ch.D. 117 141 Williams, Ex parte, In re Thompson, 1877, 7 Ch.D. 138 702 Williams, Re, 1903, 9 O.L.R. 156 289 Williams v. Bosanquet, 1819, 1 Brod. & B. 238, 3 Moore 500, 21 R.R. 585 89 Williams v. Box, 1910, 44 Can. S.C.R. 1, reversing 19 M.R. 560 190, 467, 469, 485 Williams v. Box (no. 2), 1913, 24 M.R. 31, 15 D.L.R. 261 582 Williams v. Hathaway, 1877, 6 Ch.D. 544 370 Williams v. Hunt, [1905] 1 K.B. 512 367, 396 Williams v. Morgan, [1906] 1 Ch. 804 389 Williams v. Owen, 1840, 5 My. & Cr. 303 51 Williams v. Thomas, [1909] l,Ch. 713 280, 394 Willie v. Lugg, 1761, 2 Eden 78 142 Willis v. Earl How, [1893] 2 Ch. 545 545 Wills v. Luff, 1888, 38 Ch.D. 197 398 Willson v. Thomson, 1914, 31 O.L.R. 471, 19 D.L.R. 593, varied sub nom. Thomson v. Willson, 1915, 51 Can. S.C.R. 307, 23 D.L.R. 468 381, 390, 447 Wilson, Ex parte, 1813, 2 Ves. & B. 252, 18 R.C. 382 577 Wilson y. Campbell, 1879, 8 O.P.R. 154 611 Wilson v. Campbell, 1893, 15 O.P.R. 254 378, 379, 447 Wilson v. Cluer, 1840, 3 Beav. 136 596 Wilson v. Fleming, 1893, 24 O.R. 388 370 Wilson v. Kyle, 1880, 28 Gr. 104 1 197 Wilson v. Queen's Club, [1891] 3 Ch. 522 257 Wilson v. Taylor, 1912, 4 O.W.N. 253, 7 D.L.R. 317, 23 O.W.R. 359 666, 670 Wilson v. Walton and Kirkdale Permanent Building Society, 1903, 19 Times L.R. 408 . . 558 TA3LE OF CASES bcxiil Wilton v. Dunn, 1851, 17 Q.B. 294 255 Wiltse v. Excelsior Life Insurance Co., 1916, 10 A.L.R. 67, 29 D.L.R. 32 : 50 Wiltshire v. Smith, 1744, 3 Atk. 89 . 497 Winberg and Kettle, Re, 1917, 12 O.W.N. 327 661 Winchester (Bishop of) v. Paine, 1805, 11 Ves. 194 512 Winters v. McKinstry, 1902, 14 M.R. 294 671, 678 Winthrop v. Roberts, 1907, 17 M.R. 220 51 Withington v. Tate, 1869, L.R. 4 Ch. 288 498 Wodehouse v. Scobell, In re Repington, [1904] 1 Ch. 811 246 Wolverhampton and Staffordshire Banking Co. v. George, 1883, 24 Ch.D. 707 421 Wood v. Wheater, 1882, 22 Ch.D. 281 552 Wood v. Williams, 1819, 4 Madd. 186, 20 R.R. 291 400 Wood v. Wood, 1869, 16 Gr. 471 260 Woodall, In re, 1904, 8 O.L.R. 288 524 Woodruff v. Mills, 1860, 20 U.C.R. 51 345 Woolston v. Ross, [1900] 1 Ch. 788 255 Worthington & Co. v. Abbott, [1910] 1 Ch. 588 384 Worthington and Armand, Re, 1915, 33 O.L.R. 191, 21 D.L.R. 402 319 Wragg v. Denham, 1836, 2 Y. & C. Ex. 117 584, 594 Wright, Ex parte, 1812, 19 Ves. 255 81 Wright v. Kirby, 1857, 23 Beav. 463 627 Wright v. Leys, 1885, 8 O.R. 88 205 Wright v. Morgan, 1877, 1 O.A.R. 613 418 Wrigley v. Gill, [1905] 1 Ch. 241, [1906] 1 Ch. 165 598, 612 Wrixon v. Vize, 1842, 3 Dr. & War. 104 536, 543 Wyndham v. Lord Egremont, 1775, Ambl. 753 340 Yarmouth, Re, 1879, 26 Gr. 593 5 Yarrington v. Lyon, 1866, 12 Gr. 308 193 Yates, In re, Batcheldor v. Yates, 1888, 38 Ch.D. 112 669 Yates v. Aston, 1843, 4 Q.B. 182 367 Yates v. Hambley, 1742, 2 Atk. 360 4 Yem v. Edwards, 1857, 1 DeG. & J. 598 91 York Union Banking Co. v. Artley, 1879, 11 Ch.D. 205 388, 389 Yorkshire Banking Co. v. Mullan, 1887, 35 Ch.D. 125 577 Yorkshire Railway Wagon Co. v. Maclure, 1881, 19 Ch.D. 478... 487 Yorkshire Woolcombers Association, In re, Houldsworth v. York- shire, [1903] 2 Ch. 284, [1904] A.C. 355 83 Zimmerman v. Sproat, 1912, 26 O.L.R. 448, 5 D.L.R. 452 78 Zock v. Clayton, 1913, 28 O.L.R. 447, 13 D.L.R. 502 166 Corrigenda. Page 40, line 18. For "equity" read "in equity." Page 94, note (b), line 11. For "reality" read "realty." Page 98, note (o), line 2. For "18 .R.C." read "21 R.C." Pages 161, 470, 485. Mutual Life Assurance Co. v. Douglas. See Table of Cases. Page 271, line 4. For "is now capable of existing" read "if now capable of existing." Page 276, line 2. For "Mason v. Blogg" read "Mason v. Bogg." Page 325. Colyer v. Colyer, Pawley v. Colyer. Insert "3" before "DeG. J. & Sm." PART I. THE CONTRACT OF MORTGAGE. CHAPTER I. INTRODUCTORY. 1. Ancient forms of mortgage, p. 1. 2. Welsh mortgage, p. 4. 3. Sources of modern law of mortgage, p. 5. 4. Definition of mortgage, p. 6. 5. The Conveyancing and Law of Property Act, p. 7. 6. Fraudulent and voluntary mortgages, p. 11. 1. Ancient forms of mortgage. The giving of land as a security for a debt was well known to early law, and the machinery adopted for effecting this purpose was very various (a). When Glanvil -wrote, in the twelfth century, two general rules might be stated. (1) The mortgagee was always in pos- session. A mere agreement that property should be security for a debt was not recognized by the king's court. (2) The transaction might be either mortuum vadium (mort gage, dead gage) or vivum vadium (vif gage, live gage). In the former case the profits of the land did not go in reduction of the debt; and though a creditor who made this bargain (a) This introductory historical sketch of mortgage at common law is based chiefly upon Holdsworth, History of English Law, vol. 3, pp. 110-114, and Pollock and Maitland, History of English Law, vol. 2, pp. 117-124 ("The Gage of Land"). See also H. D. Hazeltine, Oeschichte dcs englischen Pfandrechts, pp. 201 ff; Hazeltine, The Gage of Land in Mediaeval England, 17 Harv. L.B. 549, 18 Harv. L.R. 36, reprinted in Select Essays in Anglo-American Legal History, vol. 3, pp. 646-672. 2 CHAPTER I. INTRODUCTORY. fell into the sin of usury, it was not prohibited by the law. In the latter case the profits went in reduction of the debt, and it was considered to be a fair and honourable bargain. In any case the creditor's interest in the land was a special one, as mortgagee, that is, in the nature of a charge which could be enforced only upon application to the court. The great defect of the transaction lay from the debtor's point of view in the fact that he lost possession, from the creditor's point of view in the fact that his possession was not protected by the assizes if ejected, even by the mortgagor, he could not recover the land. It is probably due chiefly to the latter cause that the peculiar interest of the mortgagee, as defined by Glanvil, disappeared. He ceased to take a pe- culiar interest as mortgagee, and took instead one of the re- cognized estates or interests in the land. He must be tenant for years, or for life, or in fee. In the first case he obtained his rights under a demise for years and had the termor's remedies. In the other cases he must be enfeoffed and he had the freeholder's remedies. Accordingly, when Bracton wrote, in the thirteenth cen- tury, there were three methods by which the creditor might take a security upon his debtor's land. (1) The debtor might give the creditor a lease at a nominal rent. The rents and profits of the land paid off the debt, and provided interest for the creditor, without suspicion of his committing the sin of usury. (2) The debtor might convey the land to the creditor for a term of years, with a proviso that if the debt be not paid at the end of the term the creditor should keep the land in fee. (3) The debtor might convey the land to the creditor in fee, with a proviso that if the debt was paid by a fixed date the land should be reconveyed; and this condition was strictly construed. Britton distinctly denies that there can be any equity of redemption. Both the second and the third forms were known to Littleton, but it is the third form which ulti- 1. ANCIENT FORMS OF MORTGAGE 3 mately prevailed. It gained in popularity from the four- teenth century onwards; and, when the rules as to the crea- tion of future estates in the land became more definitely fixed, the lawyers began to think that the second form of mortgage, according to which a term of years swells into a fee by the happening of an event, is legally impossible. Just as the rules of the king's courts as to the kinds of seisin protected by the assizes destroyed the twelfth century estate in mort- gage, so the later rules of the common law as to the modes in which the estates of which men could be seised might be manipulated, limited to one type the interest of the mort- gagee. He took an estate defeasible upon condition subse- quent. His estate was, it is true, only a security for money lent, and Littleton recognised this, but, as a result of the strictness with which such conditions were construed, this feature of his estate was obscured till the Court of Chancery began to erect the elaborate superstructure of our present law of mortgage upon the basis provided by the medieval common law. The narrowness of this basis has necessitated the elaboration of the superstructure, and has caused the con- sequent complication of the law. That the basis was so nar- row was due in part to the hasty generalizations of the law- yers of the thirteenth century, in part to the technical doc- trines of the lawyers of the succeeding three centuries ( & ) . When Littleton wrote, at the end of the fifteenth century, the position of the mortgagee had become definitely fixed (c). Coke translates Littleton's language" as follows: "Item, if a feoffment be made upon such condition, that if the feoffor pay to the feoffee at a certain day, etc., 40 pounds of money, (6) Holdsworth, op. tit., vol. 3, pp.- 111-112. Pollock and Mait- land (op. cit., vol. 2, p. 123), point out that if the Jews had not been expelled from England a simpler form of mortgage than the conditional feoffment might have been adopted by the common law from the form recognized by the Jewish Exchequer. (c) Holdsworth, op. tit., vol. 2, p. 490. 4 CHAPTER I. INTRODUCTORY. that then the feoffor may re-enter, etc,, in this case the feoffee is called tenant in morgage, which is as much to say in French as mortgage and in Latine mortuum vadium. And it seem- eth that the cause why it is called mortgage is, for that it is doubtful whether the feoffor will pay at the day limited such sum or not : and if he doth not pay, then the land which is put in pledge upon condition for the payment of the money, is taken from him forever, and so dead." (d) It is to be noted that Glanvil and Littleton give different explanations of the term "mortgage." According to Glan- vil the gage is "dead" when the profits are not working off the debt and interest. According to Littleton the gage is "dead" to the debtor if the debt is not paid to date. These different explanations are suited to the state of the law at the periods when these authors wrote respectively (e). 2. Welsh mortgage. A Welsh mortgage is a practically obsolete form of se- curity (/). It should not, however, be overlooked as it is mentioned in reported decisions in comparatively modern times, and it affords an interesting example of the survival of certain features of ancient forms of mortgage mentioned by Glanvil and Bracton. It is an assurance by which, to se- cure a debt, property is conveyed to the creditor without any condition or proviso for reconveyance or defeasance and usually without any condition or covenant for payment (g), (d) Co. Litt. 205o; Litt. s. 332. (e) Holdsworth, op. cit., vol. 3, p. 110, note. (/) See 21 Halsbury, Laws of England, pp. 87-8. (g) The mortgagor may redeem at any time, but in the ab- sence of a covenant for payment the mortgagor cannot be sued per- sonally. Howel v. Price, 1715, 1 P. Wms. 291; Yates v. Hambley, 1742, 2 Atk. 360, at p. 363; Lawley v. Hooper, 1745, 3 Atk. 278; Teulon y. Curtis, 1832, Younge 610; Balfe v. Lord, 1842, 2 Dr. & W. 480, at pp. 486-8, 18 R.C. 481, at pp. 486-7; Cassidy v. Cassidy, 1889, 24 L.R. Ir. 577. 2. WELSH MORTGAGE 5 it being of the essence of the transaction that the mortgagee should have possession and receipt of the rents and profits (h). The mortgagee must receive the rents and profits either in lieu of interest (t) or in payment on account of principal and interest. In the former case the mortgagee is not under liability to account for what he receives, but in the latter case an account may be directed (j). The continued possession of the mortgagee will not bar the right of redemption until ^x. the expiration of the full statutory period (fc) after the mort- gage has been satisfied (I). There being no condition, there ). If, however, there is no evidence of a contract to effect the insurance by way of security, and it ap- pears that the mortgagee effected the insurance at his own expense and for his own protection, he will be entitled to the insurance money absolutely for his own benefit (u). (t) Wiltse v. Excelsior Life Insurance Co., 1916, 10 A.L.R. 67, 29 D.L.R. 32. (u) This paragraph is quoted in substance from the notes in 18 R.C. at p. 366, to the case of Jennings v. Ward (as to which see 25, supra). (v) Holland v. Smith, 1806, 6 Esp. 11; Drysdale v. Piggott, 1856, 8 DeG. M. & G. 546; Morland v. Isaac, 1855, 20 Beav. 389; Bruce v. Garden, 1869, L.R. 5 Ch. 32; Salt v Marquess of Northamp- ton, [1892] A.C. 1. (w) Freme v. Brade, 1858, 2 DeG. & J. 582; Brown v. Freeman, 1851, 4 DeG. & S, 444; Bashford v. Cann, 1863, 33 Beav. 109; Bruce v. Garden, supra; Preston v. Neele, 1879, 12 Ch.D. 760. 27. DISGUISED FORMS OF MORTGAGE. 51 27. Disguised forms of mortgage. A conveyance of property, in consideration of an advance, upon trust to sell in the discretion of the grantee with a declar- ation of the trusts of the proceeds of sale and a power on the grantee's part to enter and apply the rents in keeping down the interest is in substance a mortgage whether it is made to the lender himself or to a third party as trustee (x). Equity regards the substance rather than the form of the transaction. If a conveyance absolute in form is intended to be a mortgage, the vendor will have the usual equitable right of a mortgagor to redeem (if), but in the absence of evidence that the transaction is a disguised mortgage or of fraud, undue influence or other ground of invalidity, the vendor will re- ceive no assistance from equity. The evidence that the trans- action is really a mortgage must be clear and conclusive (z), especially if it is contradicted by the recitals in the docu- ment (a). Similar principles apply to the case of a conveyance with an option to repurchase. In the absence of fraud or unless the transaction is a disguised mortgage (6), time is of the essence of the contract and equity will give no relief if the option is not exercised within the period contracted for (c). (x) In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284, at p. 294. (y) Williams v. Owen, 1840, 5 My. & Cr. 303, at p. 306; Beaton v. Wilbur, 1906, 3 N.B. Eq. 309; Winthrop v. Roberts, 1907, 17 M.R. 220; Whitlow v. Stimson, 1909, 14 B.C.R. 321. (z) McMicken v. Ontario Bank, 1891, 20 Can S.C.R. 548; Holmes v. Matthews, 1855, 9 Moo. P.C. 413, 5 Gr. 108. (a) Barton v. Bank of New South Wales, 1880, 15 App. Gas. 379; Boardman v, Handley, 1899, 4 N.W.T.L.R. 266 (6) Fink v. Patterson, 1860, 8 Gr. 417; Hawke v. Milliken, 1866, 12 Gr. 236. (c) Joy v. Birch, 1836, 4 Cl. & F. 58, at p. 89; Roscoe v. McCon- ncll, 1913, 29 D.L.R. 121, 25 O.W.R. 149; cf. Dibbins v. Dibbins, [1896] 2 Ch. 348. But the right to strict performance may be waived. Pegg v. Wisden, 1852, 16 Beav. 239. 52 CHAPTER III. LEGAL MORTGAGE IN EQUITY. Extrinsic evidence may be given of circumstances which tend to shew that a conveyance absolute in form or a con- veyance with an option to repurchase is really a mortgage, as, for instance, that the consideration was grossly inadequate as the purchase price of the property, that the purchaser was not let into immediate possession of the property, that the purchaser kept accounts of the receipts and disbursements or otherwise continued to treat the vendor as his debtor, or that the vendor remained liable to repay the money or paid in- terest (d). Evidence may also be given of the declared intention of the parties. It was held in some cases in Upper Canada and Ontario that oral evidence of the intention of the parties that the transaction was a mortgage was not admissible unless a foundation had first been laid by evidence of circumstances such as those mentioned above (e). This qualification of the right to give evidence to show that the document is other than it appears to be does not seem to be maintained in the English cases, and evidence is admitted on the ground that to exclude- it would enable the Statute of Frauds to be used as a cloak for fraud (/). (d) Thornbrough v. Baker, 1677, 3 Swanst. 628, at p. 631, 18 R.C. 231, at p. 233; cf.,2 W. & T.L.C. Eq., at pp. 31-35. The test is the mutuality and reciprocity of the remedies of the parties. If the transaction is a mortgage for one party it must be a mortgage for the other. Goodman v. Grierson, 1813, 2 Ball & B. 274, 18 R.C. 6; Allenby v. Dal ton, 1835, 5 L.J.K.B. 312; Bell v. Carter, 1853, 17 Beav. 11; Alderson v. White, 1858, 2 DeG. & J. 97; Bullen v. Renwick, 1862, 9 Gr. 202; Hawke v. Milliken, 1866, 12 Gr. 236; Healey v. Daniels, 1868, 14 Gr. 633; Rapson v. Hersee, 1869, 16 Gr. 685; Rob- inson v. Chisholm, 1894, 27 N.S.R. 74; Cleary v. Aitken, 1914, 19 B.C.R. 369, 17 D.L.R. 548. (e) See review of earlier cases in Ross v. Scott, 1875, 21 Gr. 391, affirmed 22 Gr. 29; cf. dissenting judgment of Strong J. in Bar- ton v. McMillan, 1892, 20 Can S.C.R. 404, at p. 412. (/) In re Duke of Marlborough, Davis v. Whitehead, [1894] 2 Ch. 133; Rochefoucault v. Boustead, [1897] 1 Ch. 196, at pp. 206, 207. See also a learned and elaborate article by C. B. Labatt in 29 27. DISGUISED FORMS OF MORTGAGE. 53 If a mortgage is expressed in the form of an absolute con- veyance, the mortgagor's right to redeem cannot be asserted as against a purchaser in good faith without notice from the mortgagee (g). The mortgagee has no power of sale, unless indeed a statutory power of sale can be imported into the deed; nor can the mortgagee foreclose; he holds the land as trustee, and his only remedy, in the absence of the concur- rence of the mortgagor, is to have a sale through the court (7i) . The doctrine that a transfer absolute in form may be shown to be in reality a mortgage applies to a transfer and a certificate of title under the land titles system (i), but it has been held in Manitoba that where land is transferred and a certificate of title is issued and it is proved that the trans- action is intended to be by way of security merely, the effect is the same as if the transferee had, not a statutory charge or mortgage under the new system of land titles, but a bare mort- gage under the old system of registration without redemise clause, covenants or provisoes (j). 28. Nature of an equity of redemption. The classical dictum as to the nature of an equity of re- demption is that of Lord Hardwicke in Casborne v. Scarf e (k) as follows : D.L.R. 125 ff. in which the cases are collected and the Ontario doc- trine is criticised, and it is pointed out that in the other provinces in which the common law prevails the admissibility of oral evidence has been asserted without qualification. (g) Barnhart v. Greenshields, 1853, 9 Moo. P.O. 18-, 5 Gr. 99. (h) Hetherington v. Sinclair, 1915, 34 O.L.R. 61. Cf. Oland v. McNeil, 1902, 32 Can. S.C.R. 23, affirming 34 N.S.R. 453, in which it was held that the transferee had a right to sell without notice to the transferor, the transfer having been made on the understanding that the transferee should sell the property, pay out of the proceeds certain sums owing to the transferee and another, and account to the transferor for the balance. (i) See Blunt v. Marsh, 1888, 1 N.W.T.L.R. 126; Short v. Gra- ham, 1908, 7 W.L.R. 787; McCue v. Smith, 1911, 17 W.L.R. 145. As to the Land Titles Acts generally, see chapter 10. (;) Rutherford v. Mitchell, 1904, 15 M.R. 390. (fc) 1737, 1 Atk. 603, at p. 605, 2 W. & T. L. C. Eq. 6, at p. 9, 54 CHAPTER III. LEGAL MORTGAGE IN EQUITY. "An equity of redemption has always been considered as an es- tate in the land, for it may be devised, granted, or entailed with remainders, and such entail and remainders may be barred by a fine and recovery, and therefore cannot be considered as a mere right only, but such an estate whereof there may be seisin; the person, therefore, entitled to the equity of redemption is considered as the owner of the land, and a mortgagee in fee is considered as personal assets." The books contain many other obiter dicta to the same effect. All that can be accurately said, however, is that an equity of redemption is considered for many purposes as if it were an estate in the land. If it were truly an estate, it would be so for all purposes, whereas it is clear that for some purposes it is not regarded as an estate (Z). As was well said by Sir James Bacon, V.C., in Paget v. Ede (m), "The deed is executed, the legal estate passes to the mortgagee, . . . Then what remains? The equity of redemption. It is said that that is an estate. But it is by a figure of speech only that it 18 R.C. 369, at p. 373. The decision was merely that the mortgagor had at the time of her death such an interest in the land that her husband was entitled to a tenancy by the curtesy. See chapter 18, Dower and Curtesy in Mortgaged Land, 176. (0 A mortgagor, after execution of the mortgage, is not seised of the land according to the common law and therefore is not liable to the burdens of tenure incident to customary freeholds, such as a heriot due to the lord of a manor on the death of a tenant seised of a tenement in the manor. It would be wholly unreasonable to apply to the custom (by which the lord was entitled to the "best beast" of the tenant) the comparatively modern doctrine as to the equity of redemption being an estate in the land. Copestake v. Hoper, [1908] 2 Ch. 10. See discussion of this case in Challis, Real Property, 3rd ed., pp. 416-418. (m) 1874, L.R. 18 Eq. 118, at p. 125. In this case it was held that there was jurisdiction to decree foreclosure as to land in the West Indies, because the decree merely operated in personam by de- priving the mortgagor of a personal right. See chapter 24, Action for Foreclosure or Sale, 231. 28. NATURE OF THE EQUITY OF REDEMPTION. 55 can be called an estate. It may be in some instances that a husband may have a title by courtesy, and that gavelkind and borough Eng- lish may apply to it. All these are necessary consequences of the law which recognises the interest of a mortgagor in his equity of re- demption, but they do not alter the nature of the interest or create an estate; and in my opinion it is a mis-application of terms to call an equity of redemption an estate in the proper technical legal sense. That it is a right is beyond all doubt a right which may be en- forced in this 'Court, and which is recognized by the record in this case." The equity of redemption is not merely not an estate in any strict sense, it is not even an absolute right. Like all equitable rights it is subject to the equitable rules of the court which invented it. It may be refused on the ground that it would be inequitable to grant it, as, for instance, when the mortgagor has been guilty of laches (n), or it may be granted on condition that the mortgagor does equity (0). 29. How the equity of redemption may be barred or exting- uished. Although a mortgagor cannot, at the time of the making of the mortgage and as part of 'the mortgage transaction, contract himself out of his equity of redemption (p), he may agree that the mortgage shall be irredeemable for a reasonable period (q). The equity of redemption may also be barred by lapse of time (r), or extinguished by foreclosure or by sale under order of the court (s) or by sale under the power of sale (#). Furthermore a mortgagor may, by a separate and inde- dendent transaction subsequent to the making of the mortgage, (n) See chapter 25, Action for Redemption, 251. (o) The doctrine of consolidation is an illustration. See chap- ter 9, Consolidation and Tacking, 81. (p) See 23, supra. (q) See chapter 25, Action for Redemption, (r) See chapter 26, Limitation of Actions. () See chapter 24, Action for Foreclosure or Sale. (t) See chapter 31, Sale under Power of Sale. 56 CHAPTER III. LEGAL MORTGAGE IN EQUITY. sell or release his equity of redemption to the mortgagee, or give the mortgagee the option of purchasing the mortgaged property and thus in effect deprive himself of his right to redeem (u) . Prima facie, if a mortgagee takes a release of the equity of redemption, the mortgage debt is deemed to be satis- fied (i>). The release by the mortgagee of the debt is sufficient consideration for the release by the mortgagor of the equity of redemption. The relation of the parties is that of vendor and purchaser and the onus of justifying the transaction is not upon the mortgagee (w). (u) The general proposition was stated in a case in which the House of Lords affirmed the finding of fact of the Court of Appeal that the agreement for the option was really a separate transaction from the mortgage transaction. The members of the Court of Appeal were careful to dissociate themselves from the opinion expressed by Buckley, J., that the transactions were not separate and that the agreement for the option was nevertheless valid as a conditional sale. Reeve v. Lisle, [1902] A.C. 401, affirming Lisle v. Reeve, [1902] 1 Ch. 53. (u) British and Canadian Loan and Investment Co. v. Williams, 1888, 15 O.R. 366; North of Scotland Mortgage Co. v. Udell, 1882, 46 U.C.R. 511. (w) Knight v. Marjoribanks, 1849, 2 Mac. & G. 10; Melbourne Banking Corporation v. Brougham, 1882, 7 App. Cas. 307. The trans- action may, however, be impeached in special circumstances, as, e.g., on the ground of inequality, pressure or undervalue. Ford v. Older, 1867, L.R. 3 Eq. 461. CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. 31. Common law in Upper Canada, p. 57. 32. The law of mortgage, p. 58. 33. Introduction of equitable jurisdiction, p. 61. 34. .Subsequent changes in the courts, p. 64. 35. The Judicature Act, p. 66. 31. Common law in Upper Canada (a}. The statute of Upper Canada which in 1792 introduced the "laws of England" as the rule for the decision of all matters of controversy relative to property and civil rights, also provided that all matters relative to testimony arid legal proof in the investigation of fact and the forms thereof in the several courts of law and equity within the province should be regulated by the rules of evidence established in England (6). (a) In substance 31, 32 and 33 are parts of an article under the title "Law and Equity in Upper Canada" by the present writer pub- lished in 64 University of Pennslyvania Law Review, pp. 1-21 (Nov., 1914) and 34 Canadian Law Times, pp. 1130-1146 (Dec., 1914). In that article a more extended account is given of the establishment in 1837 of a court of equity, and of the inconveniences resulting from the lack of equitable jurisdiction. (6) 32 G. 3, c. 1; R.S.O. 1914, c. 101. The effect, generally speak- ing, was to supersede the French Canadian law which had theretofore been the rule for the decision of matters of controversy relative to property and civil rights and to adopt the English common law as of the 15th of October, 1792. It was held that the terms of the statute did not "place the introduction of the English law on a footing materially different from the footing on which the laws of England stand in those colonies in which they are merely assumed to be in force, on the principles of the common law, by .reason of such colonies having been first inhabited and planted by British subjects." Doe dem. Anderson v. Todd, 1845, 2 U.C.R. 82, at p. 86. In other words, such portions of the common law as were not reasonably applicable 58 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. When this statute was passed there existed in the province local courts of common pleas surviving from the period prior to the division of Quebec into the two Canadas. The legis- lature also created in the same year local courts of requests for the trial of small causes (c). Neither the courts of com- mon pleas nor the courts of requests were bound by the strict rules of the common law. In 1794, however, the courts of common pleas were superseded by the Court of King's Bench for Upper Canada (d), from which an appeal lay to the gov- ernor and council of the province. From that date until .1837 there was no superior court with any equitable jurisdic- tion. 32. The law of mortgage. The law of mortgage afforded the most conspicuous illus- tration of the inconvenient result of the lack of equitable jur- isdiction. The relation of mortgagor and mortgagee was governed by the common law as modified by statute. By the common law if the mortgagor did not perform the condi- tion of the mortgage the estate of the mortgagee became abso- lute. If the mortgagor gave up possession the mortgagee ob- tained at least a good possessory title which there was no law to the conditions of the province were not introduced in 1792. Kee- watin Power Co. v. Kenora, 1906, 13 O.L.R. 237, at p. 259, and, cases there cited. Hixon v. Reaveley, 1904, 9 O.L.R. 6. See, however, Keewatin Power Co. v. Kenora, 1908, 16 O.L.R. 184, at pp. 189, 196, 200, where a stricter construction of the statute is suggested. (c) 32 G. 3, c. 6. The justices of the peace who were authorized to hold courts of requests were directed to decide "as to them shall seem just in Law and Equity." The judge of a division court in Ontario to-day may "make such order or judgment as appears to him just and agreeable to equity and good conscience." (d) 34 G. 3, c. 2. The statute conferred upon the court juris- diction equivalent to that then possessed by the Court of King's Bench, the Court of Common Bench, or in matters which regarded the king's revenue, by the Court of Exchequer in England, but there was no mention of any equitable jurisdiction. Cf. Simpson v. Smyth, 1846, 1 U.C.E. & A. 1, at pp. 57, 66. 32. THE LAW OP MORTGAGE. 59 to disturb (e). The mortgagor could not file a bill to redeem and the mortgagee was free to deal with the land as his own. If the mortgagor refused to give up possession the mortgagee was driven to an action of ejectment, a power of sale not being usually provided for. In such an action the British statute 7 G. 2, c. 20 had provided that the mortgagor might pay or bring into court the principal, interest and costs, and become entitled to a reconveyance of the mortgaged estate. So long as the mortgagor remained in possession this statute afforded to him to some extent the same protection as a court of equity could have given him. The bringing of the action operated as effectual notice that the mortgagee insisted upon either his money or his estate. If the mortgagor did not take advantage of the statute and pay the money, the mort- gagee would get possession and practically the same status at law as if he had foreclosed in equity, the possible difference being that he got a speedier remedy than he would have got in equity. The statute could, however, be taken advantage of only if there were no accounts to be investigated and no disputed payment, and might therefore not cover some cases of hardship. If the mortgage debt was not paid on the day, the mortgagee could bring an action of ejectment and then the mortgagor could get back his estate only if he admitted the sum to be due which the mortgage was given to secure, and paid or brought into court that sum (/). On the other hand the inability to get any judicial declar- ation of title on the mortgagor's default was doubtless a source (e) Smyth v. Simpson, 1859, 7 Moo. P.C. 205, 5 Gr. 104. (/) Doe deni. McKenzie v. Rutherford, 1844, 1 U.C.R. 172. A hard case, because it appeared that the mortgage debt had probably been paid, but the accounts were disputed. The statute in question is re-enacted in British Columbia as the "Mortgagors' Relief Act," R. S. B.C. 1911, c. 168. It is no longer in force in Ontario, being super- seded by the existing rules of practice relating to mortgage actions. See chapter 24, Action for Foreclosure or Sale. 60 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. of perplexity to the mortgagee. He had no means of guard- ing against the equity of redemption which slumbered in the minds of solicitors familiar with English books or to which effect -might possibly be given under an equitable jurisdiction to be created in the future. It seems to have been not un- usual for the mortgagee, after the mortgagor's default, to ob- tain judgment on the covenant and cause the mortgagor's in- terest in the land to be sold under a writ of fieri facias (g). . This ill advised attempt to sell under legal process an in- terest which in the absence of equitable jurisdiction had 116 real existence, and which in any case was not recognized at common law and therefore could not be affected by legal pro- cess, was at an early date held to be inoperative, but so late as 1846 it formed the subject of an elaborate argument (7i), and the attempt was doubtless due to the desire of the per- plexed mortgagee to give to his title the sanction of some judicial proceeding. The sale under writ of fieri facias, how- (g) The right of a creditor in Upper Canada, instead of issuing a writ of elegit, to issue a writ of fieri facias against the lands of his debtor was based upon the British statute 5 G. 2, c. 7, entitled "an act for the more easy recovery of debts in his majesty's plantations and colonies in America," by which the property of a debtor became liable to be seized, extended, sold or disposed of in the same manner as personal estate. The result was that lands became assets in the hands of an executor for the satisfaction of debts, so that to a plea of plene administravit the plaintiff might reply lands. See Gardiner v. Gardiner, 1832, 2 U.C.O.S. 554; in the judgment the earlier cases are reviewed, and at p. 581 the practice in the province in the case of an execution, either against the original debtor or against his personal representative, is explained. It was in early days irregular to issue a fieri facias against lands until after the return of the execution against goods, (Doe dem. Spafford v. Brown, 1833, 3 U.C.O.S. 92), but this rule was changed by the statute 31 V. c. 25. It was doubtful whether the right to the remedy by elegit was not taken away, and the fieri facias did not bind the land until the delivery of the writ to the sheriff. Doe dem. Mcintosh v. Mcdonell, 1835, 4 U.C.O.S. 195. The land could not be sold within less than twelve months after the delivery of the writ to the sheriff. (ft) Simpson v. Smyth, 1 U.C.E. & A., at pp. 41 ff. 32. THE LAW OF MORTGAGE. 61 ever inoperative as a legal transfer of a supposed equity of redemption, might plausibly be urged as a circumstance in the mortgagee's favour in the event of the mortgagor's after- wards endeavouring to redeem if a court should be established with equitable jurisdiction, or might be regarded as a sale by the mortgagee for the benefit of the mortgagor with a view to realizing the encumbrance and returning the excess to the mortgagor (i). 33. The introduction of equitable jurisdiction. In the year 1834 the first allusion was made in the sta- tutes of Upper Canada to a mortgagor's equity of redemp- tion. The statute 4 W~. 4, c. 16 contained a provision for giving to a certificate of payment of the mortgage money, when registered, all the effect of a release of the mortgage and of a reconveyance of the estate, and it was thought prudent to add a proviso that such certificate, if given after the ex- piration of the period within which the mortgagor had a right in equity to redeem, should not have the effect of defeating any title other than a title remaining vested in the mortgagee or his heirs, executors and administrators. By this the leg- islature seems to have apprehended that otherwise a mort- gagee, after acquiring an estate which ought to be held abso- lute in equity as well as at law, and after transferring such estate to some other party, might, by receiving the mortgage money and giving a certificate, defeat the estate of the pur- chaser (j). In the same year the legislature passed the sta- (i) Ibid, at p. 192. After the establishment of a court of equity the law was amended by 12 V. c. 73, so as to render an equity of re- demption saleable under execution. Before the amendment if the mortgage was merely for a term of years even one thousand years the reversion might be sold and would carry with it the equity of redemption. Wightman v. Fields, 1872, 19 Grant 559, 565. For the present law, see chapter 16, Execution Creditors of the Mortgagor. (/) Robinson, C.J. in Simpson v. Smyth, 1846, 1 U.C.E. & A. 57 ff.; c/. pp. 61, 90-91, 181. As to the present statute law with regard 62 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. tute 4 W. 4, c. 1, adopting with some modifications many of the improvements in the law of real property which had lately been made in England upon the recommendation of commis- sioners. In this act mention is made in several clauses of equitable interests and estates as distinguished from legal estates, and there are provisions in respect of each, corres- ponding with those contained in the English legislation. The limitation of twenty years is adopted with regard to any suit* in equity as well as to actions at law, with a proviso (s. 35), such as the English statute contains, "that nothing in this Act contained shall be deemed to interfere with any rule or jurisdiction of Courts of Equity, in refusing relief on the ground of acquiescence or otherwise, to any person whose right to bring a suit may not be barred by virtue of this Act. ' ' The section of the English statute respecting the limitation of time for the assertion of a mortgagor's rights is very closely followed, and at the end of s. 43, in which provision is made for limiting the time for suing at law or in equity for any mortgage money or for any legacy, there is a proviso, "that in respect to persons now entitled to an equity of redemption, or to any legacy, the right to bring an action or to pursue a remedy for the same, shall not be deemed to be extinguished or barred by lapse of time, until tlie expiration of five years from the time that an equitable jurisdiction shall be established in this province, and in the exercise of its powers; provided that shall happen within ten years from the passing of this Act." (ft). In 1837 the legislature passed a statute authorizing the appointment of two additional judges for the Court of King's Bench (I) . In the same year was passed the statute commonly to a discharge of mortgage, see chapter 19, Discharge or Reconvey- ance. (fc) The italics are not in the original statute. (0 7 W. 4, c. 1. The court had theretofore consisted of the Chief Justice of Upper Canada and two puisne judges. 33. THE INTRODUCTION OF EQUITABLE JURISDICTION. 63 known as the Chancery Act (m), which for the first time af- forded the means of enforcing equitable rights in Upper Can- ada for any purpose or to any extent. By the Chancery Act, passed on the 4th of March, 1837, there was established a court of equity to be known as "The Court of Chancery for the Province of Upper' Canada," of which the governor should be chancellor, and for the better administration of justice in the said court it was enacted that the judicial powers thereof, both legal and equitable, should be exercised by a judge to be known as "the Vice Chancellor of Upper Canada. ' ' It was provided that the said court ' ' shall have jurisdiction and possess the like power and authority as by the laws of England are possessed by the Court of Chancery in England, in respect of the matters hereinafter enumerated," that is to say, in all cases of fraud; in all matters relating to trusts, executors and administrators, and mortgages; in all matters relating to infants, idiots and lunatics, and their estates, ex- cept where special provision had been made or might thereaf- ter be made with respect to them by any law of the province ; in all matters relating to awards ; to compel the specific per- formance of agreements ; to compel the discovery of concealed papers or evidence, or such as might be wrongfully withheld from the party claiming the benefit of the same; to prevent multiplicity of suits and to stay proceedings in a court of law prosecuted against equity and good conscience ; to decree the issue of letters patent from the Crown to rightful claimants; to institute proceedings for the repeal of letters patent erron- eously or improvidently issued ; to stay waste ; in all cases of accident; in all cases of account; and in all cases relating to co-partnership (n). . * (m) 7 W. 4, c. 2, an Act to establish a Court of Chancery in this Province. (n) See R.S.O. 1897, c. 51, s. 26, in force as of the date of the original act, the 4th of March, 1837. 64 CHAPTER IV. LAW AND. EQUITY IN UPPER CANADA. It was further provided that the rules of decision should be the same as governed the Court of Chancery in England, and that the court should possess full power and authority to enforce and compel obedience to its orders, judgments and decrees to the same extent as was possessed by the Court of Chancery in England, in respect of all matters within its juris- diction, except when otherwise provided by the laws of the province (o). 34. Subsequent changes in the courts. The history of the courts of Upper Canada has been re- ferred to in the foregoing pages sufficiently to illustrate the jurisdiction with regard to mortgages at law and in equity respectively. The subsequent changes in the constitution of the courts may be briefly mentioned. By statutes of the province of Canada passed in 1849, the superior courts of law and equity in Upper Canada were reorganized. In place of the provision of the statute of 1837 under which the judicial powers of the Court of Chancery were exercised by a single vice-chancellor it was enacted that the court should be presided over by a chief judge to be called the Chancellor of Upper Canada, and that there should be two additional judges to be called vice-chancellors (p). A new court to be called the Court of Common Pleas was also es- tablished, consisting of a chief justice and two puisne justices (q). Upon this court was conferred a jurisdiction identical with that possessed by the existing court of Queen's Bench, and it was provided that in the first instance two puisne judges should be transferred to the new court from the Court of Queen's Bench, which was thus reduced to a chief justice and two puisne judges, as originally constituted. (o) Cf. R.S.O. 1897, c. 51, s. 27. (p) 12 V. c. 64, ss. 1 and 2. (q) 12 V. c. 63. 34. SUBSEQUENT CHANGES IN THE COURTS. 65 The total number of judges having been increased by the statutes above mentioned from six to nine, advantage was taken of the opportunity to establish a new "Court of Error and Appeal" which it was considered would afford a more satisfactory appellate tribunal than the old court of the gov- ernor and council. All the judges of the three superior courts cf law and equity were constituted members of the new ap- pellate court, which was to be presided over by the Chief Justice of the Court of Queen's Bench, or in his absence by the judge who should be next entitled to precedence, and appeals were authorized to be brought from any of the three superior courts, with a right of further appeal in certain cases to the Queen in council (r). On the 10th of June, 1857, an act (s) was passed " for further increasing the efficiency and simplifying the proceed- ings of the Court of Chancery." By the first section it was enacted that the court should thereafter "possess the like power, authority and jurisdiction as the Court of Chancery in England possesses, as a court of equity, to administer jus- tice in all cases in which there may be no adequate remedy at law ; provided always that nothing herein shall be held to impair or diminish the jurisdiction heretofore conferred by law on the said court." On the 18th of March, 1865, it was enacted () that: "the Court of Chancery in Upper Canada shall have the same equitable jurisdiction in matters of revenue as the Court of Exchequer in England possesses." The Court of Chancery in Upper Canada had thus ac- quired a complete equitable jurisdiction, and all the superior courts of original jurisdiction had assumed the form under which they continued until the passing of the Ontario Judi- cature Act of 1881. Long before the last mentioned date, (r) 12 V. c. 63, ss. 37 to 40, 46. (s) 20 V. c. 56. <*) 28 V. c. 17. 66 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. however, some equitable powers had been conferred on the courts of common law and some powers formerly peculiar to courts of common law had been conferred on the court of equity, and in 1873 by the Administration of Justice Act (u) a long step was taken towards rendering the jurisdiction of the courts of law and that of the court of equity concurrent. In 1874 provision was made for the constitution of an appellate court of four judges entirely distinct from the courts of orig- inal jurisdiction (v}, and its name was changed from the Court of Error and Appeal to the Court of Appeal (w). 35. The Judicature Act. Radical changes in the constitution and jurisdiction of the courts were made by -the Ontario Judicature Act, 1881 (#), which was drawn on the model of the English Supreme Court of Judicature Act 1873 (i/). The Court of Appeal for On- tario, the Court of Queen's Bench, the Court of Chancery and the Court of Common Pleas were united and consolidated in one Supreme Court of Judicature for Ontario, consisting of two permanent divisions, namely, the Court of Appeal for Ontario and the High Court of Justice. The last mentioned court was subdivided into three divisions under the names of the Queen's Bench Division, the Chancery Division and the Common Pleas Division, representing the two courts of com- mon law and the court of equity then existing (2), and it was (u) 36 V. c. 8, An Act for the better administration of Justice in the Courts of Ontario. (v) 37 V. c. 7, An Act to make further provision for the due Administration of Justice. (w) 39 V. c. 7, s. 22. In 1883, by the statute 46 V. c. 6, provision was made for the appointment of an additional justice of appeal. (x) 44 V. c. 5, in effect as of the 22nd of August, 1881. (?/) The English statute, together with an amending statute of 1875, came into effect on the 1st of November, 1875. (z) By the statute 3 E. 7, c. 8, a fourth division of the High Court of Justice was created in 1903 under the name of the Exchequer 35. THE JUDICATURE ACT. 67 enacted that the High Court of Justice should be deemed to be a continuation of the said courts and should have all the jurisdiction vested in such courts prior to the passing of the statute (a). It is to be noted, however, that though in the statute language is used which would indicate that the old courts continued in existence under new names, the divisions of the High Court of Justice were different from the old independent courts (&). Under the English statute certain kinds of busi- ness were assigned to particular divisions. Thus to the Chan- cery Division were assigned ' ' the redemption or foreclosure of mortgages" and other matters which before the statute were within the exclusive jurisdiction of the Court of Chancery. But this is to be regarded as a mere matter of convenience. The distribution of business might at any time be changed without an act of parliament by rules made by the judges (c), and if an action were brought in the wrong division a judge of that division would have jurisdiction to try it instead of ordering it to be transferred to another division. Under the Ontario statute no distinction was made as to the kind of Division. Provision had already been made by the statute 54 V. c. 13, s. 1, for the decrease in the membership of the Chancery Division from four to three judges. (a) The latest consolidation of the various statutes by which prior to the Judicature Act jurisdiction was conferred on the dif- ferent superior courts cf law and equity is contained in R.S.O. 1897, c. 51, ss. 25 ff. As to the jurisdiction of the Court of "Appeal, see ss. 49 ft. (&) As to the following observations on the English statute, see Maitland, Equity and the Forms of Action, pp. 15, 16. (c) Under the English statute even the divisions might be changed without act of parliament. The old courts of common law and equity had given place in 1875 to the Chancery Division, the Queen's Bench Division, the Common Pleas Division, the Exchequer Division, and the Probate, Divorce and Admiralty Division. In 1880 pursuant to a recommendation of the judges an order in council was passed uniting and consolidating the three common law divisions under the name of the Queen's Bench Division. 68 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. business which should be assigned to a particular division, and the individual judges of all divisions took their turn in doing every kind of judicial work (d). The only significance of the divisions was that the judges of one division usually sat to- gether to constitute a divisional court. Furthermore, .every judge, to whatever division he be- longed, was bound in any case that might come before him to administer both law and equity. The change effected by the Judicature Act (e) in this respect has been well summed up in the following words (/) : The plaintiff may assert an equitable claim in any court; and may obtain an equitable remedy in any court. The defendant may raise any equitable answer or defence to any claim in any court, that is to say, anything which would formerly have been good by way of answer if the suit had been brought in Chancery, or would have afforded ground for an injunction if the action had been brought at law; he may assert, by way of counter-claim against the plaintiff, any claim, legal or equitable, which he might have raised by a cross-suit at law or in equity; the defendant may also obtain relief relating to, or connected with, the original subject of the action, against other persons, whether already parties or not. Every court is to recognize equitable rights incidentally appearing. No cause is to be restrained by injunction, but what would have been ground for injunction is to be raised by way of defence, or upon an applica- tion to stay proceedings. Subject to these provisions, common law rights and duties are to be recognized. Every court is to apply all appropriate remedies, and dispose of all matters in controversy. With regard to substantive law the Judicature Act (g} contained a long section passed to "amend and declare" the law in various respects. The section ended with these words : (d) The result is that in Ontario a judge must be a judicial jack of all trades. The principle is carried farther towards its logical conclusion in the Law Reform Act, 1909, hereinafter re- ferred to. (e) Ontario Judicatures Act, 1881, s. 16; cf. R.S.O. 1914, c. 56, s. 16. (/) Quoted, with some verbal modifications, from Wilson, Judi- cature Acts, 7th ed., p. 15. (g) Ontario Judicature Act, 1881, s. 17. 35. THE JUDICATURE ACT. 69 (10) Generally in all matters not hereinbefore particularly men- tioned, in which there is any conflict or variance between the Rules of Equity and the Rules of the Common Law with reference to the same matter, the Rules of Equity shall prevail (7i). The language of the statute just quoted expresses the view, which was probably the prevailing one down to a com- paratively modern period (i) that the rules of law and the rule's of equity were in "conflict" (j). The opposite view, namely, that the relation between law and equity at the time of the passing of the Judicature Act was not one of conflict has been maintained by Maitland, Langdell, Ames and others (k). By the Law Reform Act, 1909 ()", which came into effect on the first of January, 1913, the Supreme Court of Judi- cature for Ontario was designated the Supreme Court of Ontario, and the High Court of Justice for Ontario and the Court of Appeal for Ontario were designated respectively the (7i) The provision is now contained in R.S.O. 1914, c. 56, s. 22, but many of the other provisions contained in s. 17 of the original act have been distributed among other statutes according to their subject matter. (i) See W. W. Cook in 27 Yale L.J. 290 (December, 1917), referring to some of the literature on both sides of the question. (/) Spence, Equitable Jurisdiction of the Court of Chancery (note to book II, chapter I); Pomeroy, Equity Jurisdiction, 2nd ed., sees. 48-54, 427; W. N. Hohfeld, articles in 11 Mich. L.R. 537 (June, 1913), 26 Yale L.J. 767 (June, 1917); W. W. Billson, Equity in its Relations to Common Law, Boston, 1917 ; W. W. Cqpk, supra. (k) Maitland, Equity and the Forms of Action, pp. 16 ff., 156 ft.; Ames, article in 1 Harv. L.R. 1 at p. 9 (April, 1887); Langdell, Brief Survey of Equitable Jurisdiction, 2nd ed., pp. 4 ff., 251 ff., Summary of Equity Pleading, 2nd ed., 210, 211, and articles in 1 Harv. L.R. 55 at p. 58 (May, 1887), 13 Harv. L.R. 659, at pp. 673, 677 (April, 1900) ; John Adams, Treatise on Equity, 8th ed., xxiv and xxix; cf. 13 Halsbury, Laws of England, 64. (1) 9 E. 7, c. 28. In 1910, by the statute 10 E. 7, c. 28, provision was made for the appointment of two additional judges of the High Court not to be attached to any division. The result, under the Law Reform Act, is that there are nine judges of the High Court Division in addition to the five judges chosen each year for the second divis- ional court of the Appellate Division. 70 CHAPTER IV. LAW AND EQUITY IN UPPER CANADA. High Court Division and the Appellate Division of the Su- preme Court of Ontario. The divisions and divisional courts of the High Court were abolished, and the appellate jurisdic- tion vested in the said courts was transferred to the Appellate Division. It was further provided that there should be at least two divisional courts of the Appellate Division, the first to consist of the Chief Justice of Ontario and four justices of appeal, the second to consist of five members of the High Court Division selected year by year by the judges of the Supreme Court. It is now provided by the Judicature Act, R.S.O. 1914, c. 56, ss. 3, 12 and 13, as follows: 3. The Supreme Court shall be continued as a superior court of record, having civil and criminal jurisdiction, and it shall have all the jurisdiction, power and authority which on the 31st day of December, 1912, was vested in or might be exercised by the Court of Appeal or by the High Court of Justice or by a Divisional Court of that Court, and such jurisdiction, power and authority shall be exercised in the name of the Supreme Court. 12. (1) The Appellate Division shall exercise that part of the jurisdiction vested in the Supreme Court which, on the 31st day of December, 1912, was vested in the Court of Appeal and in the Divis- ional Courts of the High Court, and such jurisdiction shall be ex- ercised by a Divisional Court of the Appellate Division, and in the name of the Supreme Court. (2) Except as provided by the next preceding subsection, all the jurisdiction vested in the Supreme Court shall be exercised by the High Court Division in the name of the Supreme Court. 13. (1) All jurisdiction, power and authority which on the 31st day of December, 1912, was vested in or exercisable by the Chief Justice of Ontario or by a Justice of Appeal, shall be vested in and may be exercised by a Judge of the Appellate Division, and shall be exercised in the name of the Supreme Court. (2) All jurisdiction, power and authority which on the 31st day of December, 1912, was Vested in or exercisable by a Judge of the High Court shall be vested in and may be exercised by a Judge of the High Court Division, and shall be exercised in the name of the Supreme Court. CHAPTER V. EQUITABLE MORTGAGES. 41. Definition of equitable mortgage, p. 71. 42. How an equitable mortgage is created, p. 72. 43. Mortgage of equitable interest, p. 73. (1) Mortgage of an equity of redemption. (2) Mortgage of other equitable interest. 44. Mortgage by instrument not sufficient to convey the legal estate, p. 75. ( 1 ) Defect of form. (2) Agreement to give a mortgage. (3) Charge on land. 45. Mortgage by deposit of title deeds, p. 77. 46. Remedies of equitable mortgage, p. 80. 47. Floating charge, p. 82. 41. Definition of equitable mortgage. It has already been pointed out that it is an essential fea- ture of a legal mortgage that it should vest the legal estate in land in the mortgagee (fl), and it follows that any mortgage which does not transfer the legal estate cannot be a legal mort- gage. Equity not only annexed to a legal mortgage contains inevitable terms which it enforced without regard to the con- tract of the parties (b), but it recognized as valid charges mortgages other than legal mortgages and annexed to them the same inevitable terms. An equitable mortgage therefore is a contract which creates in equity a charge on property but does not pass the legal (a) See chapter 2, Mortgage at Common Law, 11. (b) See chapter 3, Legal Mortgage in Equity. 22 . 72 CHAPTER V. EQUITABLE MORTGAGES. estate to the mortgagee (c). Its operation is that of an execu- tory assurance, which, as between the parties, and so far as equitable rights and remedies are concerned, is equivalent to an actual assurance, and is enforceable under the equitable jurisdiction of the court (d). 42. How an equitable mortgage is created. The equitable nature of a mortgage may be due either to the fact that the mortgaged property is equitable, or to the fact that the mortgagor has not executed an instrument which is sufficient to transfer the legal estate. In the first case the mortgage, be it never so formal, cannot be a legal mortgage, in the second case it is the informality of the mortgage which prevents it from being a legal mortgage. These alternatives will be discussed separately (e). An equitable mortgage may also be created by a deposit of title deeds (/). Except in the case of a mortgage by deposit of title deeds (g), an equitable mortgage of an interest in land is not en- forceable by action ' ' unless 'the agreement upon which such action shall be brought or some memorandum or note thereof .shall be in writing and signed by the party to be charged therewith or some person thereunto by him lawfully auth- (c) The judgments in London County and Westminster Bank v. Tompkins, [1918] 1 K.B. 515, contain an interesting discussion of the terms "mortgage," "equitable mortgage" and "equitable charge." (d) 21 Halsbury, Laws of England, p. 74. The question of the priority of an equitable mortgage as regards a legal mortgage or another equitable mortgage will be discussed in chapter 7, Equitable Principles governing Priorities. As to equitable mortgages gen- erally, see the notes to Russel v. Russel in 2 W. & T.L.C. Eq., 85 ff. As to the registration of equitable mortgages in Ontario, see s. 36 of the Registry Act (quoted in 71) and 75. (e) See 43 and 44. (/) See 45. (g) As to which, see 45. 42. HOW AN EQUITABLE MORTGAGE IS CREATED. 73 orized" (7i), or unless there has been part performance of the contract sufficient to take it out of the statute (i) . If a statutory mortgage under the Land Titles Acts may be considered for the present purpose as being equivalent to a mortgage of the legal estate 0'), equitable mortgages exist under those acts in practically the same circumstances as in the case of land not under the land titles system with this important exception, that a second mortgage in the case of land not under the land titles system is an equitable mortgage, the mortgagor not having the legal estate (k), while under the Land Titles Acts a second mortgage is of exactly the same nature as a first mortgage (I). 43. Mortgage of equitable interest. (1) Mortgage of an equity of redemption. After a mortgagor has made a legal mortgage he has merely a right to redeem and any subsequent mortgage is neces- (h) The Statute of Frauds, 29 Car. 2, c. 3, s. 4; R.S.O. 1914, c. 102, s. 5. (i) Oral evidence is admissible to prove part performance, but the mere payment by the lender of the amount agreed to be lent on the security of the land is not sufficient part performance. Ex parte Hooper, 1815, 19 Ves. 477; Ex parte Hall, In re Whitting, 1879, 10 Ch. D. 615, at p. 619; Maddison v. Alderson, 1883, 8 App. Cas. 467, at p. 479; Chaproniere v. Lambert, [1917] 2 Ch. 356 (a case of pay- ment of rent in advance in respect of a parol agreement for a lease of premises of which the lessee had not taken possession). (/) All mortgages under the land titles system are, however, merely charges. See chapter 10, The Land Titles Acts, 93, as to the distinction between a statutory mortgage and a legal mortgage. (fc) That is, if the land is already subject to a legal mortgage. See 43. (0 See chapter 10, 98, as to the use of the terms "legal mort- gage" and "equitable mortgage" under the land titles system, and 97 as to the validity of unregistered charges under that system. Instances of equitable mortgages will be furnished by a number of cases decided under the Land Titles Acts cited in the present chapter. 74 CHAPTER V. EQUITABLE MORTGAGES. sarily an equitable mortgage (m). The effect of a second mortgage is two-fold. It transfers to the second mortgagee the right to redeem the first mortgage and creates a new right in favour of the mortgagor, namely, to redeem the second mortgage. This process can be repeated ad infinitum in the case of third and subsequent mortgages (n). The mortgages subsequent to the legal mortgage are inoperative at law, but in equity they operate toties quoties as mortgager of the mort- gagor 's equity of redemption. (2) Mortgage of other equitable interest. Certain land was bought and paid for by one W. H. Fyfe and at his request was conveyed by the vendor to the pur- chaser's son, W. G. Fyfe (an infant), to be held by him in trust for the purchaser. The purchaser afterwards signed his son's name to a mortgage of the land, adding his own name as a witness. It was held that the instrument created a valid charge in equity (0). So if a cestui que trust under a trust of land purported to mortgage the land or his interest therein without the con- currence of the trustee or other person having the legal estate the mortgage would be equitable (p). (m) Sadler v. Worley, [1894] 2 Ch. 170, at p. 173; Aikins v. Blain, 1867, 13 Gr. 646. (n) See chapter 14, Transferee of the Equity of Redemption, 131. As to right to the legal estate in .the event of the payment of the first mortgage, see chapter 19, Discharge or Reconveyance, and chapter 20, Right to Assignment of Mortgage. (o) Dennistoun v. Fyfe, 1865, 11 Gr. 372. (p) Memo dat quod non habet. See. chapter 2, Mortgage ai Common Law, 15. Strahan, Law of Mortgages, 2nd ed., 11-12, men- tions some exceptional cases, e.g. under a settlement a power to re- voke and declare new uses may be vested in a person who has not the legal estate, and under the English Settled Land Act, 1882, an equitable life tenant of settled land may in certain circumstances convey the legal estate. Conversely, the general rule is that a cestui que trust may make an equitable mortgage, but this rule is subject to exception in the case of a married woman as regard^ any 44. MORTGAGE BY INFORMAL INSTRUMENT. 75 44. Mortgage by instrument not sufficient to transfer tlie legal estate. (1) Defect of form. If a document in the form of a legal mortgage is signed but not sealed, or for any other reason is not sufficient to transfer the legal estate (q), it is an equitable mortgage. An instrument intended to operate as a legal mortgage which fails so to operate for want of some formality is valid as an equitable charge and gives the mortgagee a right to a perfected assurance (r). (2) Agreement to give a mortgage. An agreement in writing duly signed to execute a legal mortgage is an equitable mortgage, operating as a present charge on the lands described in the agreement (s). An English contract to give a mortgage on foreign land, although the mortgage has to be perfected according to the lex situs, is a contract to give a mortgage which inter partes is to be treated as an English mortgage and subject to such rights of redemption and such equities as the law of England regards as necessarily incident to a mortgage (t). separate property which she is restrained from anticipating. See also Strahan, op. cit., at pp. 56-57. (q) See chapter 2, Mortgage at Common Law, 11, as to the requirements of a legal mortgage. (r) Mestaer v. Gillespie, 1805, 11 Ves. 621. (s) Rooker v. Hoofstetter, 1896, 26 Can. S.C.R. 41, 22 O.A.R, 176. As to specific performance of the agreement to give a legal mortgage, and generally as to the enforcement of the equitable mortgages, see 46. As to an agreement to execute a mortgage under the land titles system, see Gilbert v. Ullerich, 1911, 4 S.L.R. 56, affirmed sft r<- Gilbert v. Reeves & Co., 4 S.L.R. 97. (t) British South Africa Co. v. De Beers Consolidated Mines, [1910] 2 Ch. 502, at pp. 515, 524, S.C. sub nom. De Beers etc., v. Brit- ish South Africa Co., [1912] A.C. 52; In re Smith, Lawrence T. Kitson, [1916] 2 Ch. 206. 76 CHAPTER V. EQUITABLE MORTGAGES. (3) Charge on land. An agreement in writing duly signed, however informal, by which any property is made a security for a debt due or a present advance, creates an equitable charge upon the prop- erty (u). An equitable charge entitles the holder to payment out of the property, but it does not amount to an agreement to give a legal mortgage, and the strict mode of enforcing it is by sale and not by foreclosure (v). An immediate charge on property has been held to be created by a power of attorney to receive the rents and profits until payment of a loan (w), by a deed appointing a receiver of rents and profits to secure an annuity (x), by a letter stating that the money intended to be invested on mortgage of certain lands at interest was in the hands of the writer who was interested in those lands (y), by a letter authorizing a creditor to retain the debtor's title deeds as security for the debt till the debtor's affairs should be settled (2), or by an acknowledgment of a debt with an undertaking to hold the title deeds of a house as security for the same (a). An incorporated company having executed a bond, which though it contained no direct words of charge was evidently (u) Tebb v. Hodge and Cutten, 1869, L.R. 5 C.P. 73, 18 R.C. 16; and cases cited in the notes, 18 R.C. at pp. 23 ff.; Rooker v. Hoofstet- ter, supra; Matthews v. Cartwright, 1742, 2 Atk. 347; Burn v. Burn, 1797, 3 Ves. 573; Sawyer and Massey v. Waddell, 1904, 6 N.W.T. L.R. 45 (a case under the Land Titles Act). (v) Matthews v. Goodday, 1861, 31 L.J. Ch. 282; 21 Halsbury, Laws of England, 83. See chapter 24, Action for Foreclosure or Sale, 231. (w) Spooner v. Sandilands, 1842, 1 Y. & C. Ch. Cas. 390; Abbott y. Straiten, 1846, 3 Jo. & Lat. 603. (x) Cradock v. Scottish Provident Institute, 1894, 63 L.J. Ch. 15, 69 L.T. 380, 70 L.T. 718. (y) Re Crowdy, Burges v. Crowdy, 1882, 46 L.T. 71. (z) Fenwick v. Potts, 1856, 8 DeG. M. & G. 506. (a) Baynard v. Woolley, 1855, 20 Beav. 583. 44. MORTGAGE BY INFORMAL INSTRUMENT. 77 intended to give a lien on the property of the company, it was held that the lien was sufficiently created (6). A deed poll to secure a sum of money, in which the words were "mortgage all that certain parcel of land, &c., to have and to hold the aforesaid land unto the said J. R., his heirs, exe- cutors, administrators and assigns," was held sufficient to pass the right of possession to the grantee (c). In an instrument under seal the words "and for securing, &c., the said P.P. doth hereby specially bind, oblige, mortgage and hypothecate the said piece or parcel of land, &c." pass no interest ; they only shew an intention to create a charge or lien (d). The intention of the parties as to the terms and extent of the security may be established by parol evidence (e). The agreement need not specifically describe the property if it is otherwise sufficiently ascertained or ascertainable (/), and the charge created by the agreement may extend to after acquired lands (g). A general charge for value on all the existing property of the mortgagor is not void for uncertainty if the property to which it attaches can be ascertained at the time of enforcement, and such a charge is not contrary to publie policy (7t). 45. Mortgage by deposit of title deeds. If the owner of freehold or leasehold land deposits his title deeds with another person for the purpose of securing the re- payment of an advance, an equitable charge is created, and, notwithstanding the Statute of Frauds, the purpose of the (&) Dundas v. Desjardins Canal Co., 1870, 17 Gr. 27. (c) Vandelindcr v. Vandelinder, 1864, 14 U.C.C.P. 129. (d) Doe dem. Ross v. Papst, 1853, 8 U.C.R. 574. (e) Banks v. Whittal, 1847, 1 DeG..& S. 536. (/) Smith v. Smith, 1835, 1 Y. & C, Ex. 338. (gr) Metcalfe v. Archbishop of York, 1836, 1 My. & Cr. 547. (7i) In re Kelcey, Tyson v. Kelcey, [1899] 2 Ch. 530. 78 CHAPTER V. EQUITABLE MORTGAGES. deposit may be shewn by oral evidence (i). Although, by reason of the prevalence of systems of registration of deeds and registration of titles in this country mortgages of this kind are foreign to our ordinary ideas, our law is the same as the English law with respect to such mortgages, and an equitable mortgage by deposit may be created notwithstanding that the legal title is outstanding in some person other than the depositor (j). Lord Eldon, after having previously protested against the doctrine, a.cquiesced in it in 1813 as being settled law (k). The doctrine has been defended, not very satisfactorily, on various grounds including that of part performance (I). A written memorandum duly signed containing an agree- ment to deposit deeds as security is a valid charge without a deposit (m), but an oral agreement for a deposit which is not performed is invalid (n). If there is a written memorandum the terms of the deposit must be ascertained solely by reference (i) Russel v. Russel, 1783, 1 Bro. C.C. 269, 2 W. & T.L.C. Eq. 85, 18 R.C. 26. O') Zimmerman v. Sproat, 1912, 26 O.L.R. 448, 5 D.L.R. 452, and cases there cited. As to deposit of certificate of title under the Land Titles Acts, see Fialkowski v. Fialkowski, 1911, 4 A.L.R. 10. In On- tario the Land Titles Act, R.S.O. 1914, c. 126, s. 92, provides as fol- lows: 92. Subject to any registered estates, charges, or rights, the de- posit of the certificate of ownership in the case of freehold land, and of the office copy of the registered lease in the case of leasehold land for the purpose of creating a lien on the land to which such certificate or lease relates, shall be deemed equivalent to a deposit of the title deeds of the land. (fc) Ex parte Kensington, 1813, 2 Ves. & B. 79, 18 R.C. 30. (I) Sec. 2 W. & T.L.C. Eq. 86-7; 18 R.C. 27; 21 Halsbury, Laws of England, 79; Ex parte Broderick, in re Beetham, 1887, 18 Q.B.D. 380, 766. (m) In re Carter and Justins, Ex parte Sheffield Union Banking Co., 1865, 13 L.T. 477. (n) In re Beavan, Ex parte Coombe, 1819, 4 Madd. 249, 20 R.R. 294. 45. MORTGAGE BY DEPOSIT OF TITLE DEEDS. 79 to the memorandum, but oral evidence may be given to shew a new agreement with respect to a subsequent advance (0). Mere possession by a creditor of his debtor's title deeds is not sufficient to create an equitable mortgage without evi- dence as to the manner in which such possession originated (p). The creditor must shew that the deeds were in fact de- posited with him by the debtor, and that the purpose was to create a charge, but if the deposit is proved, the purpose may in the absence of an express charge, be inferred from the cir- cumstances (q). The deposit must be made either with the creditor or with some third person over whom the debtor has no control (r). In order to create an equitable charge by deposit of title deeds it is not necessary that all the deeds should be deposited (s). The charge may be good although the conveyance to the depositor is missing (t). Prima facie a deposit of deeds creates an equitable charge on all the property comprised in them (u) . If a deposit is made for the purpose of obtaining credit, it will not cover money previously advanced and then due (o) Ex parte Kensington, supra; Shaw v. Foster, 1872, L.R. 5 H. L. 340. (p) Dixon v. Muckleston, 1872, L.R. 8 Ch. 155; Wardle v. Oakley, 1864, 36 Beav. 27. (q) 2 Wh. & T.L.C. Eq. 94; 21 Halsbury, Laws of England, 80. (r) A deposit with the debtor's wife for the creditor is not suffi- cient. Ex parte Coming, 1803, 9 Ves. 115, 18 R.C. 44. But a deposit with the debtor's wife for her own benefit is sufficient. In re Wallis, Ex parte Jenks, [1902] 1 K.B. 719. A deposit with the debtor's solic- itor is sufficient. Lloyd v. Attwood, 1859, 3 DeG. & J. 614, 652. (s) Ex parte Wetherell, 1805, 11 Ves. 398, 18 R.C. 35; Acme Co. v. Huxley, 1912, 4 A.L.R. 63 (deposit of transfer without duplicate certificate of title). (t) Roberts v. Croft, 1857, 2 DeG. & J. 1. It follows that several valid equitable mortgages might be created by successive deposits of different deeds. Cf. Dixon v. Muckleston, 1872, L.R. 8 Ch. 155. (u) Ashton v. Dalton, 1846, 2 Coll. 565, 18 R.C. 40. See further 2 Wh. & T.L.C. Eq., 98-9, as to the property covered by the mortgage. 80 CHAPTER V. EQUITABLE MORTGAGES. (v), unless the intention to cover the past due indebtedness appears from the circumstances (w). 46. Remedies of equitable mortgagee. An equitable mortgagee by deposit of title deeds or by formal mortgage of an equity of redemption is entitled to enforce his security by foreclosure or sale, but a person who has a mere equitable charge is entitled to sale not foreclosure (x). In the event of foreclosure under an equitable mortgage the judgment or order foreclosing the owner of the equity should either vest the land in the plaintiff or direct the de- fendant to convey the land to the plaintiff (y). An agreement to borrow or lend money on mortgage will not be enforced by specific performance so long as it remains executory and neither party to it performs any of its terms. The remedy, if any, is in damages (z). But an agreement to give security (a) for a past debt in consideration of for- bearance or for a present actual advance will be enforced by specific performance (&). So also where only part of the amount agreed has been advanced (c). Where an agreement for a mortgage contains a stipulation that the intended mortgage shall contain the usual clauses, a personal covenant for payment of principal and interest (v) Mountford v. Scott, 1823, Turn. & R. 274. (w) In re New, Ex parte Farley, 1841, 1 Mont. D. & DeG. 683. (x) See chapter 24, Action for Foreclosure or Sale, 231. (y) See chapter 24, 244. (z) Rogers v. Challis, 1859, 27 Beav. 175, 18 R.C. 278; Sichel v. Mosenthal, 1862, 30 Beav. 371, 18 R.C. 282; Larios v. Bonany y Guerty, 1873, L.R. 5 P.O. 346. (a) Assuming that there is either a memorandum sufficient under the Statute of Frauds or part performance sufficient to take the case out of the statute. See 42, supra. (b) Alliance Bank v. Broom, 1862, 2 Dr. and Sm. 289; Ex parte Jones, 1835, 4 D. & C. 750. (c) Hunter v. Lord Langford, 1828, 2 Moll. 272. 46. REMEDIES OF EQUITABLE MORTGAGEE. 81 will be inserted by the court ; also a power of sale unless it be implied by statute (d). If the agreement is under seal the power of sale may be exercised before the formai mortgage is executed (e). Under an agreement to execute a legal mortgage with such powers and provisions and in such form as the mortgagee may require, the mortgagee is not entitled to insert in fhe mort- gage a clause excluding the operation of the English Con- veyancing Act, 1881, s. 17 (abolishing consolidation of mort- gages) (/). In the absence of any stipulation to the contrary in an agreement to give a mortgage on lands, the general form and terms of the mortgage must be in conformity with the form provided in the Short Forms of Mortgages Act (gr). A mortgagee by deposit of title deeds may enforce the completion of the security by requiring a legal conveyance from his debtor (7i). An equitable mortgagee who commences an action for foreclosure may obtain an injunction restraining the owner from parting with the legal estate (i). As an equitable mortgagee does not convey the legal estate, the general rule is that an equitable mortgagee is not entitled to bring an action for possession against the mortgagor in occupation of the mortgaged lands (j), or, apart from express contract between the mortgagor and the equitable mortgagee, (27 D.L.R. 506; Cook v. Koldoffsky, 1916, 35 O.L.R. 555, 28 D.L.R. 346; Whaley v. Linnenbank, 1916, 36 O.L.R. 361, 29 D.L.R. 51; Northern Trusts Co. v. Battell, 1916, 9 S.L.R. 103, 29 D.L.R. 515; Security Lumber Co. v. Duplat, 1916, 9 S.L.R. 318, 29 D.L.R. 460; Warwick v. Sheppard, 79. MECHANICS LIENS. 133 Where a lienholder is added as a party in the master's office in a foreclosure action (e), the priority of the lienholder under s. 8, sub-s. 3, as stated in the master's report, should be expressly limited to the increased value. The statute does not cast upon the mortgagee the duty of realising the lien- holder's claim. If the lienholder desires to realise, he must take the necessary steps to do so either by asking for a direc- tion authorising himself to conduct a sale or by making the usual deposit and asking for a sale by the mortgagee. The costs incurred -in such a sale ought not to be charged against the mortgagor's interest but should come out of the sum ad- mitted or proved as the increased value (/). The meaning of s. 8, sub-s. 3, and of s. 14 has been ex- plained by Hodgins, J.A. (g) as follows: "The provisions of sec. 8 (3) and those of sec. 14 are not necessarily in conflict. Section 8, sub-sec. (3), deals with the land itself, or with an estate or interest in it which may be possessed by persons to whom the description of 'owner' is applied under sec. 2 (c) ; and prior mortgages or charges, under the decisions, mean those mortgages or charges which existed upon the land or those interests before the work be- gan, because by sec. 6 the lien attaches then, and it may then be at once registered (sec. 22) (7i). The lien given as against the prior mortgagee or chargee is not, however, given upon the 1917, 39 O.L.R. 99, 35 D.L.R. 98; Marshall Brick Co. v. York Farm- ers' Colonization Co., 1917, 54 Can. S.C.R. 569, 36 D.L.R. 420, affirm- ing 35 O.L.R. 542, 28 D.L.R. 464, sub nom. Marshall Brick Co. v. Irving. (e) See chapter 24, Action for Foreclosure or Sale, 238. (/) Henderson v. Morris, 1916, 10 O.W.N. 34. (g) Delivering the judgment of the Court in Cook v. Koldoffsky, 1916, 35 O.L.R. 555, at pp. 559, 560, 28 D.L.R. 346, at pp. 349, 350; cf. Warwick v. Sheppard, 1917, 39 O.L.R. 99, 35 D.L.R. 98. (ft) Kennedy v. Haddow, 1890, 19 O.R. 240; Cook v. Belshaw. 1893, 23 O.R. 545. 134 CHAPTER VIII. THE REGISTRY ACT. land, but upon the value which has been produced by way of increase, over that which the land previously had, by the sub- sequent doing of the work or the placing of the materials; and this value is not that which represents the actual value or cost of the work, etc., in itself, but the amount which it adds to the selling value. "Under sec. 14, the lien has priority over mortgage ad- vances made after the lien-holder has notified the mortgagee in writing of his lien or has registered it, and in the latter case the lien-holder is deemed a purchaser pro tanto and with- in the provisions of the Kegistry Act and the Land Titles Act, the application of which is, however, limited (sec. 21). "Under sec. 14, the priority gained is on the estate of the owner or mortgagee in the land itself, and is positive, and is irrespective of any increased value given to the selling value by the work done, and so it is not within the provisions of sec. 8, al- though the mortgage has priority by virtue of the Registry Act (*). " 'Prior' in sec. 8 means before the work, etc., commences, because the land dealt with is described as incumbered land ?> and the nature of the incumbrance as a prior mortgage or charge. The reason why the increased value is not an element under sec. 14 is well explained by the Chancellor in Cook v. Belshaw (j). It is paid for by the mortgagee by the period- ical payments which are supposed to reach the lien-holders until they, by the registration of their lien, give notice that they are unpaid. It would be impossible to hold that a mort- gage or charge or part of it which became 'prior by virtue of the Registry Act, under sec. 14, was a 'prior' mortgage or charge' in whole or pro tanto under sec. 8. To do so would present the curious spectacle of a mortgage or charge, prior in whole or in part as an incumbrance upon the lands and build- (i) McVean v. Tiffin, 13 O.A.R. 1. (/) 1893, 23 O.R. 545. 79. MECHANICS LIENS. 135 ings, as against the lien, and yet subsequent to it in whole or in part as to the increased selling value. The priority ac- quired under sec. 14 over the lien is upon the land, including the buildings and erections thereon. Both the lien and the mortgage are, therefore, charges upon the same thing ; and, as increased selling value is derived from the buildings or erections, it cannot exist as a separate element under the con- ditions of that section. The true principle is to treat sec. 8 as confined to those mortgages and charges which existed before work began, by reason of which increased selling value may arise, and sec. 14 as dealing with priorities among competing claims, all arising after work has commenced, and upon land and buildings together." CHAPTER IX. CONSOLIDATION AND TACKING. 81. The doctrine of consolidation, p. 136. 82. The mortgages must be overdue, p. 138. 83. Effect of the transfer of the equities or of the mort- gages, p. 140. 8-1. Case of different mortgages to one mortgagee, p. 141. 85. Case of mortgages to different mortgagees, p. 142. 86. Consolidation under the Registry Act, p. 145. 87. The doctrine of tacking and the Registry Act, p. 147. 88. So-called tacking to avoid circuity of action, p. 149. 81. The doctrine of consolidation. A mortgagee who holds two or more distinct mortgages upon different parcels of land made by the same mortgagor, if the mortgages are no longer redeemable at law but are re- deemable only in equity, may, within certain limits, and against certain persons, ' ' consolidate ' ' them, that is, treat them as one, and decline to be redeemed as to any unless he is re- deemed as to both or all (a). This doctrine of consolidation (&) (a) Cf. Jennings v. Jordan, 1881, 6 App. Gas. 698, at p. 700. (6) The doctrine is one of the equitable rules relating to the redemption of mortgages and belongs properly to chapter 3, Legal Mortgage in Equity, but it is discussed here in a separate chapter because this arrangement affords a more convenient opportunity of pointing out the effect of the Registry Act upon the doctrine of con- solidation and of emphasizing the distinction between the doctrines of consolidation and tacking respectively. 81. THE DOCTRINE OF CONSOLIDATION. 137 was formulated (c) in Shuttleworth v. Laycock (d) in 1684 and in Pope v. Onslow (e) in 16S2. The doctrine in its simplest and probably its original form is that if a person has mortgaged two separate parcels of land to one mortgagee to secure two different debts, and has made default as to both mortgages so that his estates have become forfeited at law, the debtor is not personally permitted to insist upon paying one debt and redeeming one mortgage without paying the other debt also (e 2 ). Consolidation is founded on the equitable maxim that he who seeks equity must do equity. "The whole doctrine of consolidation, whatever may have been the particular circumstances under which it has been applied to different cases, arises from the power of the court of equity to put its own price upon its own interference as a matter of equitable consideration in favour of any suitor. At law, independently of a legal estate, when the power of redemption given by original con- tract is gone, then a person comes into equity to have assistance from the courts of equity and asks to redeem upon what are called equitable considerations, and then the court of equity says: 'This is the price upon which we give you the relief you seek, namely, on yx)ur paying all that is due.' " (/) (c) By Lord Keeper Brldgman. See also the case of Bovey v Shipwith, 1671, 1 Cas. in Ch. 201, infra, 87, involving both consoli- dation and tacking. The doctrine of tacking (infra, 87) was for- mulated b> Chief Baron Hale, Lord Keeper Bridgman and Baron Rainsford in Hedworth v. Primate, 1662, Hardres 318, and March v. Lee, 1670, 2 Ventr. 337, 18 R.C. 523. It is 'worthy of note that these two doctrines which, in the opinion of modern legislators, show an almost excessive respect for legal rules, were founded by judges who, though they were sitting in equity tribunals, were in fact rather common lawyers than equity judges. Cf. Jerks, Short History of English Law, pp. 220, 221. (d) 1 Vern. 244. (e) 2 Vern. 286. ( covenants expressed or to be im- plied therein. Torrens Title Cases 407; Farrington v. Smith, *1894, 20 V.L.R. 90; Williams v. Box, 1910, 19 M.R. 560, at p. 588, 44 Can. S.C.R. 1; Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698; Thorn, op. ait., pp. 299 ff. (p) The section was first enacted in 1900. In 1906 the following woras were added after the word "equity"; "including the right to sell or foreclose through any competent court." In 1911 the words added in 1906 were struck out. PART HI. PERSONS CLAIMING UNDER THE MORTGAGEE. CHAPTER XI. ASSIGNEE OF THE MORTGAGE. 101. Transfer of mortgage may include both debt and land, p. 191. 102. Assignment of mortgage debt, p. 194. 103. Notice to, or concurrence of, the mortgagor, p. 196. 104. Assignment subject to state of account, p. 198. 105. Assignment subject to equity or set-off, p. 201. 106. Equity to reform or avoid mortgage, p. 205. 107. Liability of assignor to assignee, p. 206. 108. Rights and powers of assignee, p. 208. 101. Transfer of mortgage may include both debt and land. A mortgagee has the right to transfer his security either absolutely or by way of sub-mortgage (a), and in certain cir- cumstances he may be obliged to transfer the mortgage instead of reconveying or executing a discharge ( b ) . The mortgage transaction includes usually both a debt and a conveyance of land as security, and a complete transfer of the mortgage includes an assignment of the debt and a con- veyance of the land, but either may be assigned or conveyed separately (c). An assignment of the debt, with a reservation of the security to the assignor, leaves the assignor as the per- (a) In re Tahiti Cotton Co., Ex parte Sargent, 1874, L.R. 17 Eq. 273, at p. 279; Taylor v. Russell, [1892] A.C. 244, at p. 255. (b) See chapter 20, Right to Assignment of Mortgage. (c) Cf. 21 Halsbury, Laws of England, p. 171. 192 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. son who is the proper party in foreclosure or redemption, though he' is a trustee of any money thereby obtained for the assignee of the debt (d}. A transfer of the security without an assignment of the debt carries the benefit of the debt so far as it is charged on the property, since the mortgagor can- not redeem without paying the debt to the transferee, but the transferee cannot sue on the covenant (e). A transfer of a mortgage is usually made by deed, and this is essential in order to pass the legal estate in real or leasehold property; but, as regards the mortgage debt, an assignment under hand only is effectual, notwithstanding that the debt was created by deed (/) ; and an assignment under hand is effectual to pass any equitable interest in property which is vested in the mortgagee (g). An assignment of a mortgage by deposit of title deeds should be in writing, but in effect such mortgage may be assigned by the delivery of the deeds by the mortgagee to the assignee who has paid him off (7i). Where the holder of a mortgage, while suffering from an illness of which he subsequently died, endorsed on the inden- ture a memorandum assigning the same to his wife for the benefit of herself and his children, which he signed but did not seal, although the memorandum expressed it to be under seal, it was held that the wife took no interest under such assignment, either as a gift inter vivos or as a donatio mortis causa; and a bill filed by her to compel the executors to exe- (d) Morley v. Morley, 1858, 25 Beav. 253, at p. 258; cf. In re Patrick, Bills v. Tatham, [1891] 1 Ch. 82. (e) Jones v. Gibbons, 1804, 9 Ves. 407, at p. 411. (/) R.S.O. 1914, c. 109, s. 49. See 102. (g) 10 Halsbury, Laws of England, pp. 375, 376. (7i) 21 Halsbury, Laws of England, p. 174; Brocklesby v. Tem- perance Building Society, [1895] A.C. 173, at pp. 182, 183; Dryden v. Frost, 1838, 3 My. & Cr. 670, at p. 673. 101. TRANSFER OF LAND BY MORTGAGEE. 193 cute a formal assignment of the mortgage was dismissed with costs (i). Where a mortgagee by endorsement on the mortgage deed assigned to M. "his executors, administrators and assigns, all his right, title and interest in and to the within mortgage," this was held insufficient to pass the land mortgaged (j), and where an assignment under seal, annexed to a mortgage, stated that the assignor "bargained, sold, assigned and trans- ferred ' ' unto the assignee, ' ' his heirs and assigns, the annexed mortgage, and all the right, title and interest therein ' ' of the assignor, "to have and to hold the same unto the said etc., his heirs and assigns, to his and their sole use forever, ' ' it was held that the land mortgaged did not pass by these words (&) An assignment by an administratrix of a mortgage, being part of the assets of the intestate, was held valid, though not therein stated to be executed by her as administratrix (I). Where the mortgagee "assigned, transferred, conveyed and set over the said indenture of mortgage, and all his right, title and interest therein, and in the premises there- in mentioned," it was held that the mortgagee's interest in the land passed (m). A "grant" of the lands wnuid, of course, be sufficient for the purpose (w). Where the granting part of a deed of assignment transferred the indenture simply, and the Jiabendum mentioned in addition the interest of the mortgagee in "the lands therein described," it was held that the estate passed (o). It was held that a grant of ' ' all lands situate in the Prov- (i) Tiffany v. Clarke, 1858, 6 Gr. 474. (/) Moran v. Currie, 1857, 8 U.C.C.P. 60. (fc) Auston v. Boulton, 1866, 16 U.C.C.P. 318. (1) Yarrington v. Lyon, 1866, 12 Gr. 308. (m) Watt v. Feader, 1862, 12 U.C.C.P. 254. (n) See chapter 1, Introductory, 5. (o) Doe dem. Wood v. Fox, 1846, 3 U.C.R. 134. 194 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. ince of New Brunswick of which the grantor was seized in fee ' ' was insufficient to pass lands to which the grantor was entitled as mortgagee (p). Under the land titles system a mortgage does not convey the legal estate but operates by way of security only (q). A transfer of mortgage must in point of form comply with the Land Titles Act in force in the province where the land is situated and the effect of the transfer is governed by the statute (r). The English Conveyancing Act, '1881, provides a form of transfer of a statutory mortgage, the operative words of the transfer being that the transferor conveys and transfers ' ' the benefit of the said mortgage. ' ' It has been held that a trans- fer in this form of a mortgage not in the statutory form and to which the statute does not apply does not operate to trans- fer the legal title in the mortgaged property (s). 102. Assignment of mortgage debt. A mortgagee "may of course transfer his interest in the land without the concurrence of or notice to the mortgagor, and the mortgage debt necessarily passes as incident to the secur- ity (), but in order that the transferee may be entitled to sue upon the covenant there must be an assignment of the mort- (p) Doe dem. Holderness v. Donelly, 1846, 3 Kerr (N.B.) 238. (q) See chapter 10, The Land Titles Acts, 93. (r) R.S.O. 1914, c. 126, s. 54; R.S.M. 1913, c. 171, ss. 106, 109- 111; Sask. statutes, 1917 (2nd sess.), c. 18, ss. 122-124; Alta. statutes, 1906, c. 24, ss. 66-88; R.S. B.C., 1911, c. 127, s. 106; R.S.C. 1906, c. 110, ss. 104-107; Smith v. National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698. (*) In re Beachey, Heaton v. Beachey, [1904] 1 Ch. 67. (t) In the sense already indicated. Jones v. Gibbons, supra, 101. Cf. Neveren v. Wright, 1917, 39 O.L.R. 397, at pp. 405-6, 36 D.L.R. 734, at pp. 740-1. 102. ASSIGNMENT OF MORTGAGE DEBT. 195 gage debt (w) and a transfer of a mortgage usually contains such an assignment. The debt like other choses in action was formerly not assignable at law. It was assignable in equity but the assignee was obliged at law to sue in the name of the assignor, and therefore it was usual to insert in the transfer of a mortgage a power of attorney to use the assignor's name (v). It is now provided in Ontario by the Conveyancing and Law of Property Act, R.S.O. 1914, c. 109, s. 49, as fol- lows (w) : 49. (1) Any absolute assignment, made on or after the 31st day of December, 1897, by writing under the hand of the assignor, not purporting to be by way of charge only, of any debt or other legal chose in action of which express notice in writing shall have been given to the debtor, trustee or other person from whom the assignor would have been entitled to receive or claim such debt or chose in action, shall be effectual in law, subject to all equities which would have been entitled to priority over the right of the assignee if this section had not been enacted, to pass and transfer the legal right to such debt or chose in action from the date of such notice, and all legal and other remedies for the same, and the power to give a good discharge for the same without the concurrence of the assignor. An assignment which does not purport to be by way of charge only but which purports to transfer the whole interest of the assignor to the assignee is an absolute assignment with- in the meaning of the statute even though it appears on the face of the assignment that it is subject to a right of redemp- (u) Under the land titles system the simple transfer of the mortgage in the form prescribed by statute has, when registered, the effect of vesting in the transferee the right to sue for the debt. See the statutory references in 101. (v) Relief would be given in equity to the assignee if the as- signor, being indemnified against all costs and charges, refused to allow the assignee to use his name. 1 W. & T. L.C. Eq. 140. (w) Re-enacting R.S.O. 1897, c. 51 (The Judicature Act), s. 58 (5). Prior to 1897 the assignment of choses in action was governed in Ontario by R.S.O. 1887, c. 122, ss. 6 and 7, but in that year by 60 V. c. 15, s. 5, the provision of the English Judicature Act, 1873, s. 25 (6), was adopted in Ontario, as above. 196 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. tion or that it is made only for the purpose of securing a debt smaller in amount than the mortgage debt (x). Where a third party arranged with the mortgagor to take over a mortgage, and made one payment to the mortgagee of the amount of the then arrears, and at the maturity of the mortgage paid the balance owing and took an assignment in which the amount paid at maturity was recited as the debt then owing and assigned, it was held, in accordance with the inten- tion of the parties to the assignment that the assignee was entitled to hold the mortgage as security for both payments made by him (y). 103. Notice to, or concurrence of, the mortgagor. It will be observed that an assignment of a chose in action under the statute is not effective until express notice in writing is given to the debtor (2). Notice to the debtor is not, how- ever, essential to the validity of an equitable assignment as between the assignor and the assignee (a), and an assignment which does not comply with the statute may nevertheless be a good equitable assignment (&). Formerly the rule was that an equitable assignee must sue in the name of the assignor, but in modern practice it is customary for the assignee to sue in his own name, joining the assignor as co-plaintiff or as a defendant, and recently in England the highest courts have (x) Re Bland and Mohun, 1913, 30 O.L.R. 100, 16 D.L.R. 716; Hughes v. Pump House Hotel Co., [1902] 2 K.B. 190; Mercantile Bank of London v. Evans, [1899] 2 Q.B. 613; Sovereign Bank v. International Portland Cement Co., 1907, 14 O.L.R. 511. (y) Stothers v. Borrowman, 1916, 38 O.L.R. 12, 33 D.L.R. 179. (z) R.S.O. 1914, c. 109, s. 49, quoted in 102. See Pringle v. Hutson, 1909, 19 O.L.R. 652. (a) Gorringe v. Irwell India Rubber and Gutta Percha Works, 1886, 34 Ch.D. 128; Rennie v. Quebec Bank, 1901, 1 O.L.R. 303. (b) Sovereign Bank v. International Portland Cement Co., 1907, 14 O.L.R. 511 (no notice to the debtor); Trusts Corporation of Ontario v Rider, 1897, 27 O.R. 593, 24 O.A.R. 157 (oral assignment). 103. NOTICE TO MORTGAGOR OF ASSIGNMENT. 197 shown a tendency to dispense altogether with the assignor's presence in cases where his interest in the subject matter has ceased and his presence is not necessaiy for the protection of the debtor (c). In Ontario it is expressly provided by rule 85 that an assignee of a chose in action may sue in respect of it without making the assignor a party (d), and the rule enables an equitable assignee to sue in his own name where the assign- ment is of the whole fund and no beneficial interest is left in the assignor (e). It is nevertheless advisable that notice of the assignment of a mortgage should be given to the mortgagor in order to prevent his making subsequent payments to the mortgagee on account of the mortgage or to prevent subsequent dealings be- tween the mortgagor and the mortgagee which may affect the account. If the mortgagor, without notice of the assignment, satisfies the mortgage in whole or in part by payments to the original mortgagee (/) or has dealings with the mortgagee which affect the mortgage account (g), the assignee will take subject to such payments or dealings. The mere registration of the assign- ment of the mortgage will not operate as notice to the mort- (c) Maitland, Equity and the Forms of Action, p. 148; Tolhurst v. Associated Cement Manufacturers, [1903] A.C. 414, at pp. 420, 424; Brandt's Sons & Co. v. Dunlop Rubber Co., [1905] A.C. 454, at p. 462; Graham v. Crouchman, 1917, 41 O.L.R. 22, 39 D.L.R. 284. (d) This rule was originally derived from the former general orders of the Court of Chancery. (e) Graham v. Crouchman, supra; cf. Neveren v. Wright, 1917, 39 O.L.R. 397, 36 D.L.R. 734. (/) Engerson v. Smith, 1862, 9 Gr. 16; Wilson v. Kyle, 1880, 28 Gr. 104; Turner v. Smith, [1901] 1 Ch. 213, and cases cited at pp. 219-220. (fir) Baskerville v. Otterson, 1873, 20 Gr. 379. 198 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. gagor, because registration operates as notice only to persons subsequently acquiring an interest in the land (7i). 104. Assignment subject to state of account. Mere notice to the mortgagor of the assignment of a mort- gage will prevent subsequent dealings between the mortgagor and the mortgagee to the prejudice of the assignee, but will afford no safeguard as to past dealings. It is therefore advis- able that the assignee should at the time of the assignment require either the concurrence of the mortgagor in the assign- ment or his written admission as to the state of the mortgage account. The mortgage debt is a chose in action and in ac- cordance with the general rule, applicable both to equitable assignments and to assignments under the statute, the assignee takes subject to the equities affecting the subject matter, and takes subject to the state of the mortgage account between the original parties (i). Even though the assignee may get the conveyance of the legal estate he can hold it as security only for what is properly owing by the mortgagor at the date of the assignment (j). It has been held that if nothing had ever been advanced upon a mortgage or the mortgage had been made without con- sideration the assignee would stand in no better position than the mortgagee (fe), but the mortgagor may, as against the assignee, have estopped himself from denying that the money has been advanced. Under the former practice of conveyancers in England the absence of a receipt endorsed on the mortgage (ft) R.S.O. 1914, c. 124, s. 75; Gilleland v. Wadsworth, 1877, 1 O.A.R. 82, at p. 91; see chapter 8, The Registry Act, 73. The same rule applies under the Land Titles Acts. Nloa v. Bell, 1901, 27 V.L.R. 82; cf. Peck v. Sun Life Assurance Co., 1905, 11 B.C.R. 215. See also Grace v. Kuebler and Brunner, 1917, 56 Can. S.C.R. 1, at pp. 13, 14, 39 D.L.R. 39, at p. 47, affirming 11 A.L.R. 295, 33 D.L.R. 1. (i) Matthews v. Wallwyn, 1798, 4 Ves. 118, 18 R.C. 243. (;') Norrish v. Marshall, 1821, 5 Madd, 475; Mangles v. Dixon, 1852, 3 H.L.C. 702, at pp. 736, 737. 104. ASSIGNMENT SUBJECT TO STATE OP ACCOUNT. 199 operated in effect as notice to the assignee that the mortgage money had not been advanced, notwithstanding that in the body of the mortgage the receipt of the money was acknowl- edged, but if a receipt was endorsed the assignee for value without notice that the money had not been advancd was en- titled to take the mortgage on the footing that the amount ac- knowledged to have been received was received (I). It is now provided in Ontario by the Conveyancing and Law of Prop- erty Act (M) as follows: 6. A receipt for consideration money or securities in the body of a conveyance shall be a sufficient discharge to the person paying or delivering the same without any further receipt being endorsed on the conveyance. 7. A receipt for consideration money or other consideration in the body of a conveyance or endorsed thereon 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 pay- ment or giving of the whole amount thereof. In the statute just quoted the word "conveyance" includes a mortgage, charge or encumbrance (?i). S. 6 possibly has no application if no payment has been made on a mortgage, but s. 7 applies to such a case. The expression "sufficient evidence" means conclusive evidence (o). As a result of the statute a purchaser of a mortgage who has no notice (p) actual or constructive that the money ac- (fc) McPherson v. Dougan, 1862, 9 Gr. 258; cf. Gould v. Close, 1874, 21 Gr. 273. (?) Bickerton v. Walker, 1885, 31 Ch. D. 151. (m) R.S.O. 1914, c. 109, ss. 6, 7, re-enacting 49 V. c. 20, s. 10, by which in 1886 the similar provisions (ss. 54, 55) of the English Conveyancing Act, 1881, were adopted. (n) See s. 2 of the statute, quoted in chapter 1, 5. (o) Jones v. McGrath, 1888, 16 O.K. 617, at p. 623; Lloyd's Bank v. Bullock, [1896] 2 Ch. 192; Batonan v. Hunt, [1904] 2 K.B. 530. (p) The receipt is of no avail to an assignee who knows that the money was not advanced. Manley v. London Loan Co., 1896, 23 O.A.R 200 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. knowledged in the mortgage to have been received has not been received by the mortgagor is entitled to rely on the acknowledgment contained in the bodj of the mortgage (q), but of course he is bound to know that since the creation of the mortgage the debt may have been reduced (r). Under the Ontario Land Titles Act (s) the transfer of a charge is " subject to the state of account upon the charge between the chargor and the chargee, " but it has been held that the assignee is affected only in so far as payments have been made subsequent to the date of the charge and that he is not affected by the fact that the amount for which the charge is expressed to be security was not in fact advanced, if he takes without notice of such fact () The value of the mortgage debt to the transferee will de- pend on the soundness of the security, and he may purchase the debt and security at less than the nominal amount of the 139, at p. 145, S.C. affirmed sub nom. London Loan Co. v. Manley, 26 Can. S.C.R. 443. (q) Bateman v. Hunt, supra. This was an action on the cov- enant and the decision would seem to exclude the distinction drawn in Patterson v. McLean, 1891, 21 O.R. 221, between the right to sue on the covenant and the right to foreclose. In the latter case it was held that the assignee for value without notice could not enforce the covenant for payment against a mortgagor who had received no consideration. (r) DeLisle v. Union Bank of Scotland, [1914] 1 Ch. 22, at p. 33. (*) R.S.O. 1914, c. 126, s. 54. As to provisions of the various Land Titles Acts with regard to the effect of a transfer of mortgage, see 107, infra. (t) Dodds v. Harper, 1916, 37 O.L.R. 37, 32 D.L.R. 22; cf. anno- tation by E. D. Armour, 32 D.L.R. 26 ff . The decision was based upon the Conveyancing and Law of Property Act above quoted. Appar- ently in provinces where there is no corresponding statute the mort- gagor would not be liable in case the money had not been advanced unless he had done some act to induce the assignee to believe that the full amount had been advanced, the acknowledgment of receipt of the money in the mortgage not being sufficient. Swan v. Wheeler, 1909, 2 S.L.R. 269. 104. ASSIGNMENT SUBJECT TO STATE OF ACCOUNT. 201 debt ; but notwithstanding that he has done so, he is entitled to recover the whole amount owing at the time of the transfer (w), unless he stands in a position which makes this inequit- able, as, for instance, if he stands in a fiduciary position to- wards the mortgagor (v). In the absence of special words, the transferee of a mort- gage is not entitled to rents in arrear at 4he time of the trans- fer (w) ; and where interest is in arrear at the date of the transfer and the mortgagor does not concur, the transferee, on paying the arrears to the transferor, is not entitled to treat them as principal so as to bear future interest (x) . The mort- gagee and the persons claiming under him cannot, without the privity of the mortgagor, add to what is due or turn interest into principal (y). , 105. Assignment subject to equity or set-off. If the mortgagor has not concurred in the assignment of the mortgage the assignee takes subject to any claim existing at the date of the assignment which would form the subject of a set-off as between the mortgagor and the mortgagee in an action on the covenant (2). An equity cannot be set up against the assignee unless it is an existing and not merely a potential equity at the time (M) Phillips v. Vaughan, 1685, 1 Vern. 335; Anon., 1707, 1 Salk. 155; Davis v. Barrett, 1851, 14 Beav. 542, 554. (v) See 21 Halsbury, Laws of England, pp. 176, 177; cf. 2 W. & T.L.C. 47. (w) Salmon v. Dean, 1851, 3 Mac. & G. 344. (x) Ashenhurst v. James, 1746, 3 Atk. 270. (y) Matthews v. Wallwyn, 1798, 4 Ves. 118, 18 R.C. 244; 21 Halsbury, Laws of England, p. 177. (z) Court v. Holland, 1881, 29 Gr. 19, at pp. 20, 22, following Norrish v. Marshall, 1821, 5 Madd. 475, at p. 481; cf. Pressey v. Trot- ter, 1878, 26 Gr. 154; Galbraith v. Morrison, 1860, 8 Gr. 289; Rox- burghe v. Cox, 1881, 17 Ch.D. 520, at p. 526. 202 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. of the assignment. For instance, A mortgages to B and then sells to C with a covenant against encumbrances, (that is to say, as between A and C, A agrees to pay off the mortgage), and C gives back a second mortgage for the balance of the purchase money. If C, in order to protect his property, pays off the first mortgage, he can set off the amount so paid againgt the second mortgagee-. If the second mortgage is subsequently assigned, this right of set-off is good against the assignee be- cause it is an. existing equity at the time of the assignment, but if the second mortgage is assigned before C pays off the first mortgage the assignee does not take subject to the merely potential right of set-off (a). It has been held that the assignee of a mortgage takes subject not only to an equity or a right of set-off affecting the mortgage account, but also to an equity to set aside or reform the mortgage itself, and that even as against an equity of the latter kind the assignee cannot set up the defence of purchase for value without notice so as to put himself in any better position than his transferor. The owner of land made a mortgage which though not registered was good as between the parties, and afterwards conveyed to a purchaser without notice who registered his deed and therefore took free from the mortgage. The purchaser gave back a mortgage for part of the purchase money. This second mortgage was registered, but in the hands of the mortgagee it was of course subject to the prior mortgage made by the mortgagee. It was afterwards assigned to a transferee for value without notice. It was held (a) This distinction was drawn in the dissenting judgment of Strong V.C. in Henderson v. Brown, 1871, 18 Gr. 89, which was ad- opted as correct in Egleson v. Howe, 1879, 3 O.A.R. 566. In both cases the assignee had notice of the facts giving rise to the potential equity. See also Watson v. Mid-Wales, Ry. Co., 1867, L..R. 2 C.P. 593. Cf. Harter v. Colman, 1882, 19 Ch. D. 630, at p. 633, where a similar distinction is drawn in connection with the doctrine of consolid- ation. 105. SUBJECT TO EQUITY OF SET-OFF. 203 that the purchaser of the second mortgage took subject to the first mortgage and could not set up the defence of purchase for value without notice (&). A mortgage which was made in fraud of creditors was held to be void even in the hands of an assignee for value without notice (c). It was however enacted in Ontario in 1876 by the statute 39 V. c. 7, s. 10, as follows : 10. The purchaser in good faith of a mortgage may, to the ex- tent of the mortgage, (and except as against the mortgagor, his heirs, executors and administrators,) set up the defence of purchase for value without notice in the same manner as a purchaser of the property mortgaged might do (e). This section was invoked by the assignee of a mortgage in the following circumstances. A certain lot was by error in- cluded with other lands in a mortgage. The mortgage was assigned for value, and subsequently the mortgagor conveyed away the equity of redemption. The deeds were all registered in the order of their execution. In an action by the purchaser of the equity of redemption against the assignee of the mort- gage to compel the defendant to rectify the error by convey- ing the lot in question to the plaintiff it was held (/) that a (b) Smart v. McEwan, 1871, 18 Gr. 623; cf. Cockell v. Taylor, 1852, 15 Beav. 103, at p. 117. (c) Elliott v. McConnell, 1874, 21 Gr. 276; but see Totten v. Doug- las, 1869, 15 Gr. 126, 16 Gr. 243, in which in similar circumstances the purchaser of the mortgage failed only because he was put upon enquiry by his knowledge of suspicious circumstances. (d) Now R.S.O. 1914, c. 112, s. 12. (c) As to the circumstances in which a purchaser may rely upon the defence of purchase for value without notice, see chapter 7, Equitable Principles governing Priorities. It was enacted by 39 V.c. 7, s. 11, (now R.S.O. 1914, c. 109, s. 39), that "it shall in no case be necessary, in order to maintain the defence of a purchase for value without notice, to prove payment of the purchase money or any part thereof." (/) Bridges v. Real Estate Loan and Debenture Co., 1885, 8 O.R. 493. 204 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. complete defence was afforded by the combined operation of the section above quoted and of the- provision of the Registry Act that no equitable lien, charge or interest affecting land should be deemed valid as against a registered instrument executed by the same party, his heirs or assigns (#). The opinion was also expressed that the defendant would have had a good defence even if the mortgagor himself had been the plaintiff, on the ground that a collateral equity to reform the mortgage is not one of the equities subject to which the assignee of the mortgage takes (7i) . It will be observed that the plaintiff in the case just men- tioned was the purchaser of the equity of redemption and was therefore not within the protection of the exception con- tained in the statute quoted above "except as against the mortgagor, his heirs, executors or administrators." The pro- vision in question is however now part of the Mortgages Act, the excepting clause reads, "except as against the mortgagor" (i) and the word "mortgagor" is defined by the interpreta- tion clause to mean "any person deriving title under the original 'mortgagor or entitled to redeem a mortgage, accord- ing to his estate, interest or right in the mortgaged property" (j). It is submitted that on a reasonable construction of the provision in question it ought to be held that the scope of the excepting clause has not been enlarged by the inclusion of the particular provision in the more general statute (fc), but it must be admitted that on a strict construction of the re- (g) R.S.O. 1914, c. 124, s. 73. See chapter 8, The Registry Act, 75. (7i) This more general question is further discussed below. See 106. (i) R.S.O. 1914, c. 112, s. 12. This wording was introduced by 10 E. 7, c. 51, s. 11. (;) R.S.O. 1914, c. 112, s. 2 (d) (k) Cf. 3 & 4 G. 5, c. 2, s. 9, as to the general effect of the consolidation -of the statutes. 105. SUBJECT TO EQUITY OF SET-OFF. 205 vised statute a purchaser of the equity of redemption would be within the excepting clause. In any event the provision would still make the defence of purchase for value without notice available as against creditors of the mortgagor (I). 106. Equity to reform or avoid mortgage. Apart from the statute just discussed (w) there remains the distinction suggested above (n) between a collateral equity to reform a mortgage and an equity affecting the mortgage account. A similar distinction was drawn in a case in which a mortgage was transferred to a person who it was alleged purchased as trustee for the mortgagor on the understanding that the mortgagor was to be allowed to redeem the mortgage at the price paid by the transferee with an additional sum for the transferee 's services. The purchaser subsequently further transferred the mortgage to an assignee without notice of the trust, and it was held that such assignee took free from the trust ( 1 ) because the trust should have been evidenced by writing and (2) because the trust was one which did not affect the mortgage account but grew out of the personal relations of the mortgagor and the first purchaser and therefore was not . an equity which attached to the mortgage in the hands of the second purchaser (0). The correctness of the distinction drawn is, however, doubtful (p). (0 E.g., in a case like Elliott v. McConnell, supra. (m) R.S.O. 1914, c. 112, s. 12. See 105. (n) In the judgment in Bridges v. Real Estate Loan and De- benture Co., 1885, 8 O.K. 493, at p. 498. (o) Wright v. Leys, 1885, 8 O.K. 88. (p) In Wright v. Leys, the distinction is supported by tne citation of Judd v. Green, 1875, 45 L.J. Ch. 108, 33 L.T. 597, and Nant-y-glo and Blaina Ironworks Co. v. Tamplin, 1876, 35 L.T. 125, in which it was held that where the mortgagor's equity was to set aside the mortgage, a transferee for value had a better equity and was entitled to his security. The decision in these cases is opposed to the general principle and is doubtful. See 21 Halsbury, Laws of England, pp. 177-178, note (r); 2 W. & T.L.C. Eq. note (&). 206 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. In the case of a mortgage which is voidable for fraud, it would seem that the mortgagor may set up the fraud against the assignee by way of defence as cancelling or diminishing the amount which may be claimed under the assignment (q). Where a person holding land as trustee, at the request of the beneficial owners, and without any consideration to him therefor or intention to become personally liable, executed a mortgage on the land, the mortgage without his knowledge containing a covenant to pay the mortgage debt, it was held that the covenant was not enforceable against the mortgagor by the assignee of the mortgage for value and without notice, and that the assignee's remedy was restricted to proceedings against the land (r). 107. Liability of assignor to assignee. The assignor of a mortgage is liable to the assignee on a covenant that the mortgage is a valid and subsisting security, if before the assignment the lands have been sold for taxes (s). A covenant by the assignor that the mortgage is a good and valid security means, not that the mortgage is a sufficient security for the debt, but only that it is a mortgage valid in law (t). Upon a similar covenant it has been held that the assignor is not liable to the assignee for the costs of an unsuc- cessful action to enforce the security (w). (q) Stoddart v. Union Trust Limited, [1912] 1 K.B. 181, at pp. 189, 190, 193. This was a case of an assignment of a chose in action arising out of contract. The defendants failed as against the as- signee because they did not ask to have the contract set aside, but on the contrary, they had affirmed it and were seeking to set-off against the assignee's claim the damages for fraud which they were entitled to as against the assignor. (r) Patterson v. McLean, 1891, 21 O.R. 221. (s) Real Estate Investment Co. v. Metropolitan Building Society, 1883, 3 O.R. 476. (O Agricultural Savings and Loan Co. v. Webb, 1907, 15 O.L.R. 213. () Sturgess v. Bitner, 1861, 11 U.C.C.P. 102. 107. LIABILITY OF ASSIGNOR TO ASSIGNEE. 207 If the assignor covenants with the assignee to pay the mortgage moneys in the event of default being made by the mortgagor, the assignor becomes a surety and he will be dis- charged from his liability on the covenant if the assignee, without reserving his rights against the assignor or without his consent, materially alters the terms of the mortgagor's liability, as, for example, by releasing part of the lands on payment of part of the debt (v) or by making a binding agree- ment to give time to the mortgagor ; and it has been held that if an agreement for extension, made without the assignor's consent, is a material alteration of the original contract, as for example, if it contains a stipulation for an increased rate of interest, the surety is discharged notwithstanding the reser- vation of his rights (w)- But if the assignee takes a ne\v mortgage for the same debt on the same land from a purchaser thereof from the mort- gagor, with an extended time for payment, the assignee re- fusing at the same time to discharge the old mortgage, the assignor will not be discharged (x). Where a mortgagee assigned the mortgage, covenanting for the payment of the mortgage money, and subject to an agreement between the mortgagee and the assignee that the former might have a re-assignment of the mortgage on pay- ment of the principal and interest due thereon, and the mort- gagee afterwards made payments under his covenant, it was held that he was entitled to a lien therefor as against the mort- gagor (y). An assignment of a mortgage by way of mortgage, called a (v) Farmers' Loan and Savings Co. v. Patcttett, 1904, 6 O.L.R. 255, affirmed 8 O.L.R. 569. (w) Bristol & West of England Land Co. v. Taylor, 1893, 24 O.R. 286; Trusts Corporation of Ontario v: Hood, 1896, 23 O.A.R. 589. (x) Trusts Corporation of Ontario v. Hood, supra, (y) Fleming v. Palmer, 1866, 12 Gr. 226. 208 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. sub-mortgage or a derivative mortgage, may be made by a formal assignment of the mortgage subject to redemption, or by a deposit of the mortgage and other title deeds in which case it will be an equitable sub-mortgage (z). Under a sub- mortgage nothing can be recovered from the original mort- gagor in excess of the amount due on the mortgage, and on payment of that amount the sub-mortgagee must deliver up the mortgage to the original mortgagor (a). Where a derivative mortgagee, by representing himself to be the owner of the mortgage, obtained a release of the equity of redemption which he afterwards sold for more than was due him from his assignor, it was held that he was bound to account to the assignor for the profit (6). If a sub-mortgage contains no covenant for payment an action cannot be maintained by the assignee against the as- signor unless there is evidence of a loan. Thus where a mort- gagee in consideration of $5.30, acknowledged to be paid, assigned to the plaintiff a mortgage for $360 with a proviso that the assignment should be void on payment of the $530 and interest, but the assignor did not covenant to pay, it was held that no action could be maintained for the mortgage debt (c). 108. Eights and powers of the assignee. The assignment of the mortgage debt confers upon the assignee the right to sue on the covenant for payment (d) . (2) Ex parte Smith, In re Hildyard, 1842, 2 Mont. D. & DeG. 587. (a) As to the discharge of the original mortgage in the event of a sub-mortgage having been made, see chapter 19, Discharge or Reconveyance, 184. (6) McLean v. Wilkins, 1887, 14 Can. S.C.R. 22. (c) Peannan v. Hyland, 1862, 22 U.C.R. 202; see also Hall v. Morley, 1853, 8 U.C.R. 584. (d) See 101, 102, supra, and chapter 23, Action on the Covenant, 223. 108. RIGHTS AND POWERS OF ASSIGNEE 209 The conveyance of the mortgagee's estate confers upon the assignee the right to exercise any power incident to that estate, for instance the right to sue for foreclosure or sale in case of default (e), and the benefit of any covenant run- ning with the land, even though the covenant is not expressly made with the assigns of the mortgagee (/). Neither the assignment of the mortgage debt nor the con- veyance of the land enables the transferee to exercise a mere personal power relating to the land, for instance, a power of sale (g) or a license to distrain (7i), unless the mortgage pro- vides that such power may be exercised by the assigns of the mortgagee (i). Collateral securities for the mortgage debt must be as- signed expressly - r they do not pass under general words giving the transferee the benefit of the mortgage security. Unless the transferor has agreed to hold them for the transferee, he will, on being paid off in full by the transferee, hold them in trust for the mortgagor (j). In Saskatchewan it is provided by the Land Titles Act as follows (A;) : Upon the registration of a transfer of a mortgage, encumbrance or lease the interest of the transferor as set forth in such instru- ment with all rights, powers and privileges thereto appertaining shall pass to the transferee; and the transferee shall thereupon be- (e) See 101 and 102, supra, and chapter 24, Action for Fore- closure or Sale, 233. (/) For a discussion of covenants running with the land, see Armour, Real Property, 2nd ed., pp. 379 ff. (g) See chapter 31, Sale under Poicer of Sale, 336. (7i) See chapter 33, Attornmcnt and Distress, 361. (i) In a well drawn mortgage care will be taken to provide, either by a general clause or by the terms of the particular power, that the power may be exercisable by the assigns of the mortgagee. (j) 21 Halsbury, Laws of England, p. 172, citing Glasscock v. Balls, 1889, 24 Q.B.D. 13. (k) Sask. statutes, 1917 (2nd sess.), c. 18, s. 124. 210 CHAPTER XI. ASSIGNEE OF THE MORTGAGE. come subject to the same liabilities as if named in the original in- strument as mortgagee, encumbrancee or lessee to the extent of the interest transferred. By virtue of every such transfer the right to sue upon any mort- gage or other instrument and to recover the amount transferred or damages, and all the interest of the transferor in such amount or damages, shall vest in the transferee. Nothing herein contained shall prevent the court from giving effect to any trusts affecting such amount or damages, in case the transferee holds the same as trustee for another person. The Land Titles Acts of Alberta and the Northwest Ter- ritories and the Real Property Act of Manitoba contain sub- stantially similar provisions (I). The Land Titles Act of Ontario provides (m) that the transfer of a charge when registered, shall confer upon the transferee the ownership of the charge free from any unreg- istered interests therein, that every charge shall be subject to the state of account upon the charge between the chargor and the chargee (n), and the transferor shall be deemed to re- main owner of such charge until the name of the transferee is entered on the register in respect thereof. (0 Alta. statutes, 1906, c. 24, ss. 67, 68; R.S.C. 1906, c. 110, ss. 106, 107; R.S.M. 1913, c. 171, ss. 110, 111. (m) R.S.O. 1914, c. 126, s. 54. (n) See 104, supra. CHAPTER XII. EXECUTION CREDITORS OF THE MORTGAGEE. 111. Rights of execution creditors, p. 211. 112. Seizure of mortgage under execution, p. 211. 113. Discharge by sheriff or bailiff, p. 214. 111. Rights of execution creditors. The question of priority under the Registry Act (a) and under the Land Titles Acts ( b ) - as between an execution cred- itor of the mortgagor and a mortgagee or purchaser of the mortgaged land has already been discussed, and the rights and remedies of an execution creditor of the mortgagor in other respects are discussed in a subsequent chapter (c). The sub- ject of the present chapter is the rights and remedies of an execution creditor of the mortgagee. It was formerly held in Upper Canada that the interest of a mortgagee of land could not be sold under a writ of exe- cution, even after the estate had become absolute at law by reason of the mortgagor's default, because the mortgagee held the land as security for a debt and the effect of a sale under execution would be to separate the estate and the debt (d). The law was, however, changed by statute in Ontario (e). 112. Seizure of mortgage under execution. It is now provided by the Execution Act, R.S.O. 1914, c. 80, ss. 25 to 28,. as follows: (a) See chapter 8, The Registry Act, 76. (6) See chapter 10, The Land Titles Acts, 96. (c) See chapter 16, Execution Creditors of the Mortgagor. (d) Lodor v. Creighton, 1860, 9 U.C.C.P. 295; Parke v. Riley, 1866, 3 U.C.E. & A. 215, at pp. 228, 231, 232. (e) 56 V. c. 5. The present provisions are set out in 112, 113, infra. 212 CHAPTER XII. EXECUTIONS AGAINST MORTGAGEE. 25. (1) If a sheriff is informed on behalf of the execution cred- itor that the execution debtor is a mortgagee of land and that the mortgage is registered, or that he is entitled to receive a sum of money charged upon land by virtue of a registered instrument, and -if the sheriff is required on behalf of the execution creditor to seize the mortgage or charge, and is furnished in writing with the infor- mation necessary to enable him to give the notice hereinafter men- tioned, he shall, upon payment of the proper fees, forthwith deliver or transmit to the registrar or master of titles in whose office the mortgage or other instrument is registered, who shall forthwith reg- ister the same, a notice in the form or to the effect following: To the registrar of (or as the case may be) By virtue of an execution issued out of the Supreme Court of Ontario (or as the case may be) whereby I am commanded to levy of the goods and chattels of A.B. $ for debt, and $ for costs lately adjudged to be paid by A. B. to C. D., besides the costs of execution, I have this day seized and taken, in execution all the estate, right, title and interest of A. B. in a mortgage made by X. Y. to -A. B., bearing date the day of 19 and registered in the registry office of the County of (or as the case may be) on the day of 19 , as number (or the said mortgage or other instrument may be described in any other manner by reference to dates, parties and the land covered as will enable the notice to be registered against the land therein described) and in the money secured there- by, and this notice is given for the purpose of binding the interest of A. B. under sections 25 to 29 of The Execution Act. Dated this day of 19 (Signed) M. N., Sheriff of the County (or District) of (2) Upon registration of the notice the interest of the execution debtor in the mortgage or other instrument, and in the land therein described, and in the money thereby secured and in all covenants and stipulations for securing payment thereof, shall be bound by the execution, and such registration shall be notice of the execution and seizure to all persons who may thereafter in any way acquire any interest in the mortgage, land, money or. covenants; and the rights of the sheriff and of the execution creditor shall have priority over the rights of all such persons subject, as regards the mortgagor or person liable to pay the money secured by the mortgage or charge, to the next following section. 26. (1) A notice similar to that mentioned in the next preced- ing section shall also be served upon the mortgagor or the person who is liable to pay the money secured by the registered instrument; and after such service the person served shall pay to the sheriff all 112. SEIZURE OF MORTGAGE UNDER EXECUTION. 213 money then payable and, as it becomes due, all money which may become payable to the execution debtor so far as may be necessary to satisfy the execution. (2) Service of the notice may be made personally, or by leaving the same at the dwelling-house of the person to be served with a grown up person residing there, or by registered post to the proper address of the person to be served. (3) Any payment made after service of the notice or after actual knowledge of the seizure shall be void as against the sheriff and execution creditor. 27. In addition to the remedies herein provided, the sheriff may bring an action on such mortgage or other instrument for the sale or foreclosure of the land covered by it, and shall be entitled to a bond of indemnity as in the cases provided for in section 23. 28. (1) Upon an execution* notice whereof is registered under section 25, expiring or being satisfied, set aside or withdrawn, a cer- tificate of such fact shall be given by the sheriff or by the execution creditor, and the same or the order to set aside, as the case may be, may be registered; and thereupon such seizure shall be vacated and be at an end. (2) The order or the certificate of the sheriff shall not require verification. (3) The certificate of the execution creditor shall be verified by the oath of a subscribing witness as in the case of other instruments affecting land. It is provided by s. 2 (6) that "Sheriff" shall include any officer to whom an execution is directed. Where an execution debtor who was a mortgagee assigned the mortgage prior to the registration of a notice of seizure of the mortgage under s. 25, but the assignment was not reg- istered until afterwards, it was held that the execution cred- itor was not entitled to insist upon the sheriff's taking further proceedings without indemnifying him against costs, and that as the sheriff was not authorized to realize upon the security except by action he was not subject to any suit or proceeding by the assignee of the mortgagee and was not entitled to relief by way of interpleader. ' ' In other words, the statute authorizes the seizure of the mortgagee's interest, and where there has been an assignment of that interest, whether registered or not, and whether bona fide or not, .... the sheriff's 214 CHAPTER XII. EXECUTIONS AGAINST MORTGAGEE. hands are tied until the execution creditors have in action obtained a declaration of the Court that the assignment is void" (/). It is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 64, as follows : 64. (1) The seizure under execution or other process of a mortgage or charge, or of leasehold land registered under this Act, shall not take effect until a certificate of the sheriff or other officer that he has taken such mortgage, charge or leasehold land under such process against the registered owner thereof is lodged with the proper Master of Titles. (2) The certificate shall state the number of the parcel under which the land affected is registered and the name of the owner, and shall be noted by the Master in the register. (3) This section shall not apply where the proceedings pre- scribed by section 25 of The Execution Act have been taken with respect to a mortgage or charge. 113. Discharge by sheriff or bailiff. It is provided by the Registry Act, R..S.O. 1914, c. 124, s. 68, as follows: 68. (1) Where a sheriff, bailiff of a Division Court or other officer, under a writ or warrant of execution against goods, seizes a mortgage belonging to the person against whose goods the writ or warrant has issued, on or affecting land in Ontario, the payment of the mortgage money in whole or in part to the sheriff, bailiff or other officer by the mortgagor or any other person or any person claiming under him, shall satisfy the mortgage to the extent of such payment. (2) After payment of the mortgage money or any part thereof^ the sheriff, bailiff or other officer shall, at the request and expense of the person requiring the same, give a certificate, Form 11, under the hand and seal of office of the sheriff or other officer, or under the hand of the bailiff and the seal of the court of which he is bailiff. (3) Upon the written request of the bailiff the clerk of the court shall affix to the certificate the seal of the court; and he shall file the request of the bailiff in his office. (4) The execution of the certificate shall be proved in the same manner as in the case of other instruments affecting land, and the certificate shall be registered in the same manner as other certi- cates of discharge. (5) The certificate when registered, if the same is of payment (/) Keenan v. Osborne, 1904, 7 O.L.R. 134. 113. DISCHARGE BY SHERIFF OR BAILIFF. 215 in full of the mortgage, shall be as valid and as effectual in law as a release of the mortgage and as a conveyance to the mortgagor, his neirs, executors, administrators or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor as if executed by the execution debtor (g). (6) The certificate when registered, if the same is of payment of only a part of the mortgage money, shall be as valid and effectual in law as a release of the mortgage as to such part, as if executed by the execution debtor. (7) Where a mortgage has been seized by a sheriff or bailiff of the Division Court or other officer in the manner provided by law, and such seizure has been withdrawn, vacated or for any other reason set aside, the sheriff, bailiff or other officer under whose hand notice of seizure has issued, may give a certificate directed to the registrar in whose office the notice of seizure is registered, to the effect that such seizure has been withdrawn, vacated or set aside as the case may be, and such certificate shall be registered in the registry office in the same manner and for the same fee as a discharge of mort- gage (ft). Form 11 above referred to is as follows : To the Registrar of the Registry Division of I, A. B., of sheriff of the County (or District) of [or Bailiff of the (number) Division Court of the County (or District) of ] do certify that by virtue of an execution wherein C. D. is plaintiff and E. F. defendant, issued out of the Supreme Court (or as the case may be) and to me direct- ed, I seized a certain mortgage made by one T. H. of (as described in the mortgage) bearing date the day of 19 , and registered at of the clock in the noon, of the day of in Book for as flb. . to E. F. of (as described in the mortgage), the defendant in the said execution named, and such mortgage has not been assigned (or has been assigned to the defendant: here set out date and date of registration of assignment) and I do further certify that I have received from the said mortgagor (or from the executors, administrators or assigns of the said mortgagor, a-s the case may be), the full amount of said mortgage (or $ part of the mortgage money), and that such mortgage is therefore discharged (or that such mortgage is as to $ part of the money thereby payable, discharged). As witness my hand and seal of office (or the seal of the said court) this day of 19 Witness ) A. B. (g) As to the effect of a discharge of mortgage, when registered, see chapter 19, Discharge or Reconveyance, 184. (h) Sub-s. 7 was added in 1918 by 8 G. 5, c. 27, s. 9. CHAPTER XIII. PERSONS ENTITLED ON DEATH OF THE MORTGAGEE. 121. Mortgage security is personalty, p. 216. 122. Legal estate formerly devolved as realty, p. 217. 123. The Devolution of Estates Act, p. 219. 122. Payment in case of death of mortgagee, p. 222. 125. Transmission under the Land Titles Acts, p. 225. 121. Mortgage security is personalty. It has already been pointed out that if the mortgagee died before the day fixed for payment of the mortgage the money, as part of his personal estate, was at law payable to his executor and not to his heir, unless the heirs were named, and that if the' day for payment were past the money was in equity payable to the executor even though the heirs were named (a). It has long been settled that a mortgage security is per- sonal estate (&), and so long as the. equity of redemption is not' extinguished the mortgagee's beneficial interest continues to be personal estate, notwithstanding that he may have en- tered into possession (c). Even apart from the Devolution of Estates Act it devolves on the personal representative and would not pass under a general devise of real property (d). (a) See chapter 3, Legal Mortgage in Equity, 21. (ft) 21 Halsbury, Laws of England, p. 182, note (q). (c) Noy v. Ellis, 1676, 2 Cas. in Ch. 220; In re Loveridge, Dray- ton v. Loveridge, [1902] 2 Ch. 859. When the equity of redemption of freehold is extinguished, the mortgagee's interest ceases to be personalty. In re Loveridge, Pearce v. Marsh, [1904] 1 Ch. 518. (d) 21 Halsbury, Laws of England, p. 184; Strode v. Russel, 1708, 2 Vern. 621; Casborne v. Scarf e, 1737, 1 Atk. 603, reporter's note at p. 605, 18 R.C. 369, at p. 373. 122. DEVOLUTION OF LEGAL ESTATE. 217 122. Legal estate formerly devolved as realty. Formerly, however, the legal estate in the mortgaged land devolved according to the ordinary rules applicable to prop- erty held absolutely and not by way of mortgage. If a mort- gagee of freehold died intestate or did not devise the mortgaged land, the legal estate descended to the heir at law, although the mortgage debt devolved on the executor or administrator (e). In such a case the heir held the legal estate as trustee for the executor or administrator and was bound to convey it accord- ingly. The mortgagee might by his will devise the legal es- tate to one person and bequeath the mortgage debt to another, in which case the devisee became a trustee, first, for the exe- cutor, and after his assent for the legatee. Frequently, in order to avoid the inconvenience arising from the separation of the legal estate and the right to the mortgage debt, testators expressly devised all legal estates vested in them by way of mortgage to their executors, so as to enable the latter effect- ually to deal with the mortgages without recourse to any other persons. A general devise of real estate w r ould pass the legal estate in land held by way of mortgage in the absence of a contrary intention appearing from the will (/). The inconvenience arising from the separation of the legal estate and the right to the mortgage debt, where the mortgagee died intestate or did not devise the mortgaged land to his ex- ecutor, was remedied.in Ontario by the provision of the statute 14 & 15 V. c. 7, s. 8, which, as amended by 32 V. c. 10, s. 2, is now contained in the Mortgages Act, R.S.O. 1914, c. 112, s. 10, as follows : 10. Where a person entitled to any freehold land by way of mortgage has died, and his executor or administrator has become (e) Hunter v. Farr, 1864, 23 U.C.R. 324; Doe dem. Slason v. Hanson, 1857, 8 N.B.R. (3 Allen) 427. (/) In re Stevens' Will, 1868, L.R. 6 Eq. 597, 18 R.C. 238, and editor's notes at p. 240; cf. 21 Halsbury, Laws of England, p. 182 note ( of the personal representatives of the last survivor, shall be a complete discharge for all money or money's worth for the time being due, notwithstanding any notice to the payer of a sever- ance of the joint account. (2) This section shall apply only if and as far as a contrary intention is not expressed in the mortgage, or obligation or transfer, and shall have effect subject to the terms thereof. An action for foreclosure may be maintained by the sur- vivor of two mortgagees on a joint account (z). Where a mortgagee of land has died without having en- tered into the possession or into the receipt of the rents and profits thereof, and the money due in respect of the mortgage has been paid to a person entitled to receive the same or such person consents to an order for the reconveyance of the land, (y) Dilke v. Douglas, supra. In -any case it appears that in view of the present provisions of the Registry Act even in the case of actual payment the surviving mortgagee cannot alone execute a discharge which upon registration will operate as a reconveyance. As in the case of the death of a sole mortgagee or of both or all of two or more mortgagees, the personal representatives of the deceased mortgagee or mortgagees must join in executing the discharge. See chapter 19, Discharge or Reconveyance, 185. (z) See chapter 24, Action for Foreclosure or Sale, 233. 124. PAYMENT IF MORTGAGEE DEAD. 225 the court may in certain circumstances make a vesting order (a). In case of a bequest of a mortgage indebtedness to the mortgagor, the executors may be compelled to discharge the mortgage before payment by the mortgagor of his other in- debtedness to the estate (?)). ]25. Transmission under the Land Titles Acts. In Manitoba, Saskatchewan, Alberta, and the* Northwest Territories, land, upon the death of the owner, passes to his personal representative (c). Provision is made by the Real Property Act of Manitoba and the Land Titles Acts of Saskatchewan, Alberta, the North- west Territories and Ontario for the registration, on his own application, of the person entitled by transmission to any land, mortgage or encumbrance (land or charge in the case of Ontario). The Manitoba Real Property Act provides that if the ap- plicant becomes registered as the owner of any land, mortgage or encumbrance as executor or administrator of a deceased person he shall thereupon, in case of mortgage or encumbrance, be invested with all the rights and powers which the deceased owner was possessed of (d), and that every certificate of title issued to an executor or administrator or trustee under a will . . . shall describe the owner as such execu- tor, administrator or trustee, and the will shall be deemed to be em- bodied in and to form part of the certificate of title; and the execu- tor, administrator or trustee shall, when so described, hold the land in respect of which he is registered upon the trusts and for the (a) See chapter 19, Discharge or Reconveyance, 186. (b) Archer v. Severn, 1886, 12 O.K. 615, 14 O.A.R. 723. (c) R.S.M. 1913, c. 54, s. 21; R.S.S. 1909, c. 43, s. 21, Sask. statutes, 1917 (2nd sess.), c. 18, s. 140; Alta. statutes, 1906, c. 19, s. 2; R.S.C. 1906, c. 110, s. 5. See Thorn, The Canadian Torrens Sys- tem, pp. 249 ff. for a discussion of the subject of transmission. (tf) R.S.M. 1913, c. 171, s. 128. 226 CHAPTER XIII. IN CASE OF DEATH OF MORTGAGEE purposes to which the same is subject by law, and, before registering any dealing with the land, the district registrar shall satisfy himself that such dealing is in accordance with such trusts or purposes (e) . i In Saskatchewan, Alberta and the Northwest Territories it is provided that upon the registration of the application and the documents authorizing the executor or administrator to administer the estate of the deceased owner the executor or administrator shall be deemed to be the owner of the land, mortgage or encumbrance, as the case may be (/), and it is further provided in Alberta and the Northwest Territor- ities that any person registered in place of a deceased owner shall hold the land in respect of which he is registered upon the trusts and for the purposes to which the same is applicable by this Act or by law and subject to any trusts and equities upon which the deceased owner held the same; but for the purpose of any registered dealings with such land he shall be deemed to be the absolute and beneficial owner thereof (g). In Saskatchewan a provision similar to that just quoted was -formerly in force, but it is now provided in that province as follows : (1) For the purpose of registered dealing the person to whom land of a deceased owner has been transmitted shall, subject to the next following subsection, be considered the absolute owner thereof, but he shall nevertheless hold the land upon the trusts and subject to any equitable claims with which it was affected before trans- mission. (2) The registrar shall not register any transfer, mortgage or other instrument executed by the executor or administrator except an application for transmission or a caveat or a discharge of mort- gage, unless: (a) A certificate of the official guardian.made subsequent to the date of grant of letters probate or administration, or of resealing (e) R.S.M. 1913, c. 171, s. 76. (/) Sask. statutes, 1917 (2nd sess.), c. 18, ss. 141, 142; Alta. statutes, 1906, c. 24, ss.-74, 75; R.S.C. 1906, c. 110, ss. 115, 120. (g) Alta. statutes, 1906, c. 24, s. 76; R.S.C. 1906, c. 110, s. 121! 125. THE LAND TITLES ACTS. 227 thereof, that he has satisfied himself that there are no infants in- terested in the estate of the deceased owner, has been filed with the registrar; or (6) The instrument to be registered is accompanied by the con- sent of the official guardian to the proposed dealing; or (c) The instrument to be registered is accompanied by an order of a judge of a court of competent jurisdiction, authorizing the the proposed dealing (7i). In Ontario it is provided that any person registered in the place of a deceased owner shall hold the land or charge in respect of which he is registered, upon the trusts and for the purposes to which the same is applicable by law and subject to any unregistered estates, rights, interests, or equities subject to which the deceased owner held the same; but otherwise in all respects, and in particular as respects any registered dealings with such land or charge, he shall be in the same position as if he had taken such land or charge under a trans- fer for a valuable consideration (i). It will be observed that all the statutes referred to are sim- ilar in effect as regards the relations between the personal re- presentative or trustee in whose name the land or mortgage is registered and the persons beneficially entitled, but as regards dealings between the registered owner and third parties there are fundamental differences. , In Alberta and the Northwest Territories no duty is cast upon the registrar of satisfying himself that the registered owner in making a transfer or mortgage of the deceased own- er 's interest is acting in accordance with the trusts, and a pur- chaser or mortgagee taking in good faith from the registered owner will obtain a good title upon registration even though the registered owner is guilty of a breach of trust. In Sas- katchewan also the purchaser or mortgagee from the registered owner will obtain a good title in similar circumstances upon registration. The beneficiaries of the estate of the deceased owner are to some extent protected by the provision of the statute prohibiting the registrar from registering a transfer (7i) Sask. statutes, 1917 (2nd sess.) c. 18, s. 146. (t) R.S.O. 1914, c. 126, s. 59. 228 CHAPTER XIII. IN CASE OF DEATH OF MORTGAGEE or mortgage executed by the registered owner unless the in- strument is accompanied by the certificate or consent of the official guardian or the order of a judge, but in other respects the registrar, as in Alberta and the Northwest Territories, is under no responsibility as to the right of the registered owner to make the transfer or mortgage. In Manitoba, on the other hand, if a person applies to be registered as owner in his capacity of executor, administrator or trustee under a will, he is described as such in the certificate of title, and no instrument executed by him can be registered until the registrar satisfies himself that it is in ac- cordance with the trusts or purposes upon or for which the registered owner holds the land. The right of the registered owner to make a transfer or mortgage, and the duty of the registrar in deciding whether an instrument should be regis- tered, are therefore governed by the ordinary principles of law relating to executors, administrators and trustees (j). The provisions of the Ontario statute above quoted are not so specific as those of the Manitoba statute, but according to the practice actually followed in Ontario, the result is in some respects similar. A person who applies to be registered as owner in his capacity of executor or administrator is so de- scribed on the register, and a transfer or mortgage made by him cannot be registered until the master of titles is satisfied that such executor or administrator has power, either by the terms of the will or under the Devolution of Estates Act or other statutory authority, to transfer or to mortgage for the purpose proposed. (j) Cf. Thorn, The Canadian Torrens System, pp. 252, 253. In the case of Manitoba, as in the case of the other provinces, the gen- eral rule is that no memorandum or entry of any notice of trusts shall be made upon the register. See the statutory provisions re- ferred to in chapter 10, The Land Titles Acts, 97. The treatment in Manitoba of trusts arising under a will is therefore exceptional. PART IV. PERSONS CLAIMING UNDER THE MORTGAGOR. CHAPTER XIV. TRANSFEREE OF THE EQUITY OF REDEMPTION. 131. Mortgage of the equity of redemption, p. 229. 132. Absolute transfer of the equity of redemption, p. 230. 133. Personal liability of mortgagor to mortgagee, p. 233. 134. Obligation of transferee to indemnify transferor, p. 234. 135. Mortgagee entitled to enforce indemnity only if it is assigned to him, p. 239. 136. Mortgagee may disable himself from enforcing indem- nity, p. 241. 137. Marshalling and subrogation, p. 243. 138. Case of transfer of one of two parcels subject to a common mortgage, p. 245. 139. Case of transfer to different persons of two parcels sub- ject to a common mortgage, p. 246. 131. Mortgage of the equity of redemption. If the owner of land has mortgaged it he retains merely an interest which is usually called his equity of redemption (a). He may subsequently either mortgage this interest or transfer it absolutely. (a) Of course if the mortgagor has not made default he has a legal or contractual right to redeem, and the term "equity of re- demption" only becomes appropriate after the legal or contractual right has been forfeited. This distinction is, however, not important for the purpose of this chapter, and therefore it is convenient to follow here the usual practice of referring to the interest which the mortgagor has in the mortgaged lands as his equity of redemption. 230 CHAPTER XIV. TRANSFER OF EQ. OF REDEMPTION The former transaction in common parlance is a second mortgage of the land, although in fact, if the first mortgage is a legal mortgage, the subject matters of the two mortgages are different. The second mortgage is a mortgage not of the land itself but merely of the right to redeem the first mort- gage (&). The effect is to transfer to the second mortgagee the right to redeem the first mortgage and to create in favour of the second mortgagor a new right to redeem the second mortgage. So the mortgagor may by a third mortgage trans- fer his right to redeem the second mortgage and create in his own favour a new right to redeem the third mortgage, and this process may be continued indefinitely. The result always is that the mortgagor retains only the right to redeem the latest mortgage, he having transferred his right to re- deem the earlier mortgages (c). At any given time the mort- gagor's so-called equity of redemption consists of the right to redeem the latest mortgage, and he may either mortgage that equity or transfer it absolutely. 132. Absolute transfer of the equity of redemption. If the mortgagor transfers the equity of redemption ab- solutely, the effect is that the transferee becomes the person entitled to redeem the only mortgage or the latest mortgage, as the case may be, and the mortgagor retains no interest in the land (d). The new owner of the equity of redemption (&) If the first mortgage is a legal mortgage the second mort- gage is necessarily an equitable mortgage. See chapter 5, Equitable Mortgages, 41. (c) See chapter 25, Action for Redemption, 251. (a) The vendor may of course have a lien for unpaid purchase money, either secured by a mortgage from the purchaser or not so secured. As to the validity of the equitable lien, or of the mortgage taken to secure it, as against subsequent purchasers or mortgagees, see chapter 7, Equitable Principles governing Priorities, chapter 8, The Registry Act, and chapter 10, The Land Titles Acts. 132. ABSOLUTE TRANSFER OF EQUITY, 231 may now either mortgage the equity of redemption or trans- fer it absolutely, and as often as the equity of redemption is transferred absolutely the same alternative presents itself. It is therefore apparent that the transfer of the equity of redemption, which is the subject of this chapter, may be a transfer by the original mortgagor or a transfer by a person who is himself a transferee of the equity of redemption, and that the subject matter of the transfer always is the right to redeem the latest mortgage only,, if there are two or more mortgages. A mortgagor may assign any rights incident to his owner- ship of the equity of redemption (e), but where the equity of redemption was valueless, and an assignment thereof was made merely for the purpose of enabling the assignee to im- peach for the benefit of the assignor a prior mortgage on the ground of fraud, the assignment was held to savour of cham- perty and no relief was granted to the assignee (/). Where, however, the assignee takes beneficially and the assignment is not made merely to enable him to sue in respect of the al- leged fraud, it would seem that he may maintain the action (flO. A mortgagor cannot, to the injury of an assignee of the equity of redemption, receive rent from a tenant of the mort- gaged premises in advance. Where, therefore, a mortgagor made a lease of the mortgaged lands, and gave an order for rent in advance to the mortgagee, to be, and which was, ap- plied by him in discharge of other liabilities of the mortgagor, who afterwards transferred his equity of redemption to an (c) Steers v. Rogers, [1893] A.C. 232. (/) Muchall v. Banks, 1862, 10 Gr. 25; and see Little v. Haw- kins, 1S72, 19 Gr. 267; Wigle v. Setterington, 1872, 19 Gr. 512; Bell v. Walker, 1873, 20 Gr. 558; Hilton v. Woods, 1867, L.R. 4 Eq. 432. (4?) Seear v. Lawson, 1880, 15 Ch. D. 426, 434; Dickinson v. Burrell, 1866, L.R. 1 Eq. 337. 232 CHAPTER XIV. TRANSFER OP EQ. OF REDEMPTION assignee in good faith without notice of such advance of rent, it was held that the owner of the equity of redemption was entitled to have the amount of rent so advanced applied in payment of the mortgage debt (It). The purchaser of the equity of redemption is, in general, entitled to the benefit of covenants made by the mortgagee with the mortgagor. Thus where a mortgage contained a covenant to release any land sold during the continuation of the mortgage upon the payment of 200 per acre, and an as- signee of the mortgagor made a general payment upon the mortgage, and afterwards upon selling a portion, demanded a release from an assignee of the mortgagee, it was held that the benefit of this covenant would pass to an assignee of the equity of redemption, but that the mortgagee must receive the stip- ulated sum per acre upon the sale of the portion to be re- leased, a general payment on the mortgage not being suffi- cient (i). A mortgage on five stores expressed to be for $10,500 contained a provision that the mortgagees would release the easterly store on payment of $2500, and any one or more of the other four stores on payment of $2,000 each, at any time on receiving a bonus of three months' interest on the sum so paid, and it was held that the benefit of this clause passed to the assignee of the equity of redemption, and that he was entitled to enforce it (j). A purchaser of the equity of redemption is entitled to the surplus after a sale under the mortgage. So where, after a sale of mortgaged premises in an action for sale, the mort- gagor made an assignment for the benefit of creditors before certain prior execution creditors had established their claims in the master's office to the surplus, the assignee was held to (h) Gilmour v. Roe, 1874, 21 Gr. 284. (i) Webber v. O'Neil, 1864, 10 Gr. 440. (j) Clarke v. Freehold Loan and Savings Co., 1888, 16 O.R. 598. 132. ABSOLUTE TRANSFER OF EQUITY. 233 be entitled to such balance free from any liability to satisfy the executions out of it (k). A purchaser of the equity of redemption takes subject to the true state of the accounts as between the mortgagor and the mortgagee, and does not by virtue of the Registry Act stand in any better position than the mortgagor did (I). 133. Personal liability of mortgagor to mortgagee. The transfer of the equity of redemption does not relieve the transferor of his personal liability, if any, to the mort- gagee or to the person from whom he acquired the equity, as the case may be. Nor does the transfer impose upon the transferee any personal liability to the mortgagee or to any person other than the transferor (w), even though the transferee coven- ants with the transferor to pay the mortgage (n). Where a mortgagor has -become insolvent and his assignees have sold the equity of redemption the purchaser is not bound to make good any deficiency there may be on a sale to realize the se- curity (o). (fr) Carter v. Stone, 1890, 20 O.R. 340. (I) Thomson v. Stikeman, 1913, 29 O.L.R. 146, at p. 159, 14 D.L.R. 97, at pp. 107, 108, S.C. 30 O.L.R. 123, 17 D.L.R. 205. () In re Errington, Ex parte Mason, [1894] 1 Q.B. 11. This is in accordance with the rules that, save as between lessor and lessee, the burden of a covenant does not run with the land at law, and that the burden of a positive covenant does not run with the land in equity. 21 Halsbury, Laws of England, p. 270, note (I). As to the liability of the transferee to the mortgagee in Alberta, see 134. (n) There is no privity of contract between the transferee and the mortgagee which would enable the latter tq sue the former. Frontenac Loan and Investment Society v. Hysop, 1892, 21 O.R. 577; Canada Landed and National Investment Co. v. Shaver, 1895, 22 O.A.R. 377. (o) Nichols v. Watson, 1876, 23 Gr. 606. 234 CHAPTER XIV. TRANSFER OF EQ. OF REDEMPTION 134. Obligation of transferee to indemnify transferor. The transfer of the equity may, however, give rise to an obligation on the part of the transferee to indemnify his im- mediate transferor against the liability, if any, of the latter to the mortgagee or to the person from whom he acquired the equity. The obligation may be express or implied. If a limited obligation to indemnify is expressed in the transfer, a more general obligation cannot be implied (p), and there is no implied obligation if the transfer contains a covenant against incumbrances, but in the absence of an express stipu- lation the general rule is that if land is transferred subject to a mortgage the transferee is under an implied obligation to indemnify the transferor against the latter 's liability in respect of the mortgage (q). The rule as applied, to mort- gages of land is only an instance of the principle that if a person buys property which is subject to a charge and it is the intention of the parties that the purchaser is to take the property cum onere, the purchaser is bound, irrespectively of the form of the contract, to indemnify the vendor against the charge, for ex hypotJiesi the purchaser is paying only the value of the property less the amount of the charge and he is not entitled to get the property freed from the charge at the vendor's expense (r). In the absence of an express covenant, the implication of (p) Mills v. United Counties Bank, [1912] 1 Ch. 231. (g) Waring v. Ward, 1802, 7 Ves. 332, at p. 336; Jonefe v. Kear- ney, 1841, 1 Dr. & W. 134, at p. 155; Walker v. Dickson, 1892, 20 O.A.R. 96, at p. 102. (r) Boyd v. Johnson, 1890, 19 O.R. 598; Gooderham v. Moore, 1899, 31 O.R. 86. The principle has been applied in the case of the transfer of bank shares which are subject to the double liability. Boultbee v. Gzowski, 1898, 39 Can. S.C.R. 54, 24 O.A.R. 502, 28 O.R. 285. It has been applied also in the case of the purchase of a share in a partnership so as to impose upon the purchaser the obligation to indemnify the vendor against the liabilities of the partnership. Dodson v. Downey, [1901] 2 Ch. 620. 134. OBLIGATION TO INDEMNIFY TRANSFEROR 235 an obligation on the purchaser's part to indemnify the ven- dor arises from the fact of purchase with the intention that the purchaser should pay the charge and not from the terms of the transfer, and the implication may be rebutted by oral evidence shewing that the apparent purchaser was not the purchaser in fact or that it was not the intention of the par- ties that the purchaser should indemnify the vendor (s). Thus there is no implied obligation to indemnify on the part of the grantee in a conveyance which is absolute in form but which is made to him as nominee of the real purchaser or merely as security, the relation of transferor and transferee not be- ing that of vendor and purchaser (t). In Mills v. United Counties Bank (u), Fletcher Moulton L. J. speaks of ' ' the doctrine . . . that there is an implied covenant on the part of a purchaser of an equity of redemp- tion to indemnify the vendor against the mortgage debt." Farwell L.J., in the judgment which follows, asserts that the obligation belongs to a class of equities independent of con- tract, which "are now sometimes erroneously called implied contracts." The apparent contradiction between the two learned lords justices may perhaps be mitigated, if not re- solved, if we observe that the implied contracts of the com- mon law were themselves introduced because there was no contract in fact. The only real difference between an equity founded in conscience and an implied contract would seem to be that for historical and accidental reasons the courts of common law could not or would not extend to the former (s) As to the admission of oral evidence to rebut the implied obligation, see Beatty v. Fitzsimmons, 1893, 23 O.R. 345; British Canadian Loan Co. v. Tear, 1893, 23 O.R. 664. (t) Walker v. Dickson, 1892, 20 O.A.R. 96; Corby v. Gray, 1888, 15 O.R. 1; Fraser v. Fairbanks, 1894, 23 Can. S.C.R. 79; Fullerton v. Brydges, 1895, 10 M.R. 431; Campbell v. Douglas, 1916, 54 Can. S.C.R. 28, 32 D.L.R. 734, affirming 34 O.L.R. 580,, 25 D.L.R. 436. (u) [1912] 1 Ch. 231, at p. 241. 236 CHAPTER XIV. TRANSFER OF EQ. OF REDEMPTION class of cases the presumption which they made in the latter (v). It is probably more accurate nevertheless to describe the obligation in question as an equitable obligation (w), and in accordance with this view it has been held that where land is conveyed to a married woman subject to a mortgage she is not bound to indemnify her grantor unless she express- ly contracts to do so, that is to say, the obligation to indem- nify which is ordinarily implied on the part of a purchaser is not one arising from contract and therefore does not bind the separate estate of a married woman (x). There is of course no obligation on the part of a purchaser to indemnify the vendor if the latter is himself not liable in respect of the mortgage, for instance, if the vendor had pur- chased on the terms that he should not assume the mortgage but that it should be paid by the person who sold to him. So it has been held that where a mortgagee sold the land under the power .of sale for a price sufficient to pay the principal, interest and costs, he could not without sufficient reason treat the sale as a nullity and have recourse to the former personal liability of the mortgagor, and that if the latter paid the mortgage, not being then personally liable, he could not com- pel his transferee to indemnify him (t/). If the mortgagor is sued on his covenant by the mort- gagee, and is entitled to be indemnified by his transferee, he (v) 28 L.Q.R. 122-3 (April, 1912). (w) Cf. Campbell v. Morrison, 1897, 24 O.A.R. 224; S.C. sub nom. Maloney v. Campbell, 28 Can. S.C.R. 228. On the other hand there are dicta in favour of the view that the obligation arises from implied contract in Beatty v. Fitzsimmons, 1893, 23 O.R. 245; Oliver v. McLaughlin, 1893, 24 O.R. 41. (x) McMichael v. Wilkie, 1891, 18 O.A.R. 464, Osier J. A, at pp. 469 ff., Maclennan J. A. at pp. 474 ff. If the conveyance to a mar- "ried woman contains an express covenant on her part to pay the mortgage debt the covenant may be enforced against her separate estate. Small v. Thompson, 1897, 28 Can. S.C.R. 219. (y) Patterson v. Tanner, 1892, 22 O.R. 364. 134. OBLIGATION TO INDEMNIFY TRANSFEROR 237 may obtain an order adding the latter as a third party and is entitled to a lien on the land for the amount which he is obliged to pay (2). Payment by the mortgagor is not a con- dition precedent to his right of action on the purchaser's ob- ligation to indemnify him, and the purchaser may be pro- tected by a direction to pay the money into court (a). The doctrine now under discussion has in Ontario been expressed in statutory form in the Execution Act which authorizes the sale under a writ of execution of an equity of redemption (&), and provides that if a person other than the mortgagee becomes the purchaser, and if the mortgagee, his executors, administrators or assigns shall en- force payment of the mortgage debt by the mortgagor the purchaser shall repay the debt and interest to the mortgagor, and in default of payment thereof within one month after demand the mortgagor may recover the debt and interest from the purchaser, and shall have a charge therefor upon the mortgaged land (c) It is provided by the' Manitoba Real Property Act (d) as follows : 97. In every instrument transferring an estate or interest in land under the new system, subject to mortgage or encumbrance, there shall be implied, unless otherwise expressed, the following covenant by the transferee with the transferor, that is to say: that such transferee shall pay the interest, annuity or rent charge se- cured by such mortgage or encumbrance at the rate and at the time specified in the instrument creating the same, and will indemnify and keep harmless the transferor from and against the principal sum or other moneys secured by such instrument and from and (z) Hamilton Provident Loan Co. v. Smith, 1888, 17 O.R. 1; McMurtry v. Leushner, 1912, 3 O.W.N. 1176, 3 D.L.R. 549. (a) Mewburn v. Mackelcan, 1892, 19 O.A.R. 729; Noble v. Camp- bell, 1911, 21 M.R. 597; In re Richardson, Ex parte Governors of St. Thomas's Hospital, [1911] 2 K.B. 705; Shaver v. Sproule, 1913, 4 O.W.N. 968, 9 D.L.R. 641; cf. McDonald v. Peuchen, 1918, 42 O.L.R. 18, 41 D.L.R. 619 (6) See chapter 16, Execution Creditors of the Mortgagor, 154. (c) R.S.O. 1914, c. 80, s. 33. (d) R.S.M. 1913, c. 171, s. 97. See Ross & Phillips v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648, and annotation 14 D.L.R. 652 ff. 238 CHAPTER XIV. TRANSFER OF EQ. OF REDEMPTION against the liability in respect of any of the covenants therein con- tained or under this Act implied on the part of the transferor. Under the Land Titles Acts of Saskatchewan, Alberta and the Northwest Territories a similar covenant on the part of the transferee is implied "in every instrument transferring land, -for which a certificate of title has been granted, subject to mortgage or encumbrance." The Northwest Territories statute (e) does not specify in whose favour the covenant is implied and presumably, as under the Manitoba statute, the covenant is with the immediate transferor only. Under the former Saskatchewan statute (/) the covenant was "with the transferor and so long as such transferee shall remain the reg- istered owner with the mortgagee or incumbrancee, ' ' and un- der the Alberta statute (g) it is "both with the transferor and the mortgagee." Under the present Saskatchewan statute (h) the covenant is "with the transferor." Under the Alberta statute the mortgagee may sue the transferee upon the covenant (i), but in the other provinces the transferor is not liable to the mortgagee unless the coven- ant or obligation is assigned to the latter (j). It was held under the former Saskatchewan statute that the covenant was imp.lied only if the whole of the mortgaged property was transferred (k). In Alberta it has been held that the coven- (e) R. S. C. 1906, c. 110, s. 69. (/) R.S.S. 1909, c. 41, s. 63. (g) Alberta statutes, 1906, c. 24, s. 52. By the statute 1916, c. 3, s. 15, the court is authorized to make an order directing the regis- tration of a transfer if the transferee declines to register it. (70 Sask. statutes, 1917 (2nd sess.), c. 18, s. 64. (i) Great West Lumber Co. v. Murrin & Gray, 1916, 11 A.L.R. 173, 32 D.L.R. 485. (/) See 135, infra. (fc) Montreal Trust Co. v. Boggs, 1915, 25 D.L.R. 432; Dominion of Canada Investment and Debenture Co. v. Carstens, 1917, 10 S.L.R. 272, 36 D.L.R. 25; Dominion of Canada Investment and De- benture Co., v. Gelhorn, 1917, 10 S.L.R. 278, 36 D.L.R. 154. 134. OBLIGATION TO INDEMNIFY TRANSFEROR 239 ant is implied only if there is a complete transfer of his in- terest on the part of the transferor and therefore no coven- ant is implied in a transfer absolute in form which is intended as security merely (I), and that in any case the implied cov- enant may be negatived by apt words in the transfer (m). 135. Mortgagee entitled to enforce indemnity only if it is assigned to him. The mortgagor is not bound to. enforce the purchaser's obligation to indemnify him for the benefit of the mortgagee, and the position is not changed by the death of the mort- gagor. In that event the mortgagee's right is to claim against the estate of the mortgagor. If the mortgagee makes such a claim, but not otherwise, the personal representative of the deceased mortgagor would be obliged, as regards the general body of creditors, to call upon the purchaser to make good the amount by which the assets were diminished by be- ing applied in payment of the mortgage (n). A mortgagee who obtains judgment on the-covenant against the mortgagor is not entitled to the appointment of a receiver for the purpose of, enforcing the purchaser's obligation to indemnify, even though the plaintiff sues on behalf of himself and all other creditors of the mortgagor (0). There is no privity of contract or implied obligation be- tween the mortgagee and the purchaser of the equity of re- demption which will enable the former to sue the latter for payment of the mortgage money, even though the latter has covenanted with the mortgagor to pay the money (p). (I) Short v. Graham, 1908, 7 W.L.R. 787. (m) Bernard v. Faulkner, 1914, 7 A.L.R. 439, 18 D.L.R. 174. (n) Higgins v. Trusts Corporation of Ontario, 1900, 27 O.A.R. 432. (o) Palmer v. McKnight, 1899, 31 O.R. 306. (p) Frontenac Loan and Investment Society v. Hysop, 1892, 21 O.R. 577; Canada Landed and National Investment Co. v. Shaver, 240 CHAPTER XIV. TRANSFER OF EQ. OF REDEMPTION. The right to indemnity may, however, be assigned by the person entitled to it to a person entitled to recover the mort- gage debt (q) , so that if the right is assigned to the mortgagee, he may enforce it (r), and, in the case of two successive trans- fers of the equity of redemption upon the terms that the transferee in each case assumes the mortgage, if the second transferor assigns the right of indemnity to the first trans- feror, the latter may enforce it against the second transferee (.s). The measure of the indemnifier's liability is the liabil- ity, not the capacity, of the person indemnified to pay (t). The obligation of the purchaser of land subject to a mort- gage towards the vendor is essentially only a contract of indemnity, even though the purchaser expressly covenants with the vendor to pay the mortgage, and if the purchaser obtains a release from the only person who could in any way damnify the vendor, he is under no liability. This is illus- trated in a striking way by the following case. The equity of redemption was sold by A to B, by B to C, and by C to D, there being in the case of each sale a covenant by the pur- chaser to pay the mortgage and indemnify his immediate pre- decessor. The mortgagee, seeking to make D pay the mort- gage, procured an assignment from C of D's covenant. Sub- 1895, 22 O.A.R. 377. As to the special statutory provisions in Al- berta, see 134. (Q) Maloney v. Campbell, 1897, 28 Can. S.C.R. . 228, affirming Campbell v. Morrison, 24 O.A.R. 224. If the assignment is made before any right of action has accrued against the person to be indemnified, the assignment cannot become operative until the ac- crual of the right of action. S.C. 28 Can. S.C.R. at p. 233. (r) British Canadian Loan Co. v. Tear, 1893, 23 O.R. 664; Morice v. Kernighan, 1908, IS M.R. 360. (s) Smith v. Pears, 1897, 24 O.A.R. 82. (t) Therefore the fact that the person indemnified is a married woman who has no immediate separate property affords no defence. British Union and National Insurance Co. v. Rawson, [1916] 2 Ch. 476. 135. WHEN MORTGAGEE ENTITLED TO INDEMNITY 241 sequently D procured from A and B assignments of the cov- enants in their favour respectively. It was held (1) that D's covenant, notwithstanding its form, was merely a covenant to indemnify C, (2) that the assignments from A and B released C from any liability to indemnify, A and B being the only persons to whom he could be liable and no cause of action having meantime arisen by C against D, and (3) that conse- quently D could not be liable to indemnify C. ?. (g) The latter portion of s. 33 expresses this obligation in stat- utory form. See chapter 14, Transferee of the Equity of Redemption, 134. (ft) R.S.O. 1914, c. 112, s. 9, quoted in chapter 21, Merger, 204. CHAPTER XVII. PERSONS ENTITLED ON DEATH OF THE MORTGAGOR. 161. Devolution of equity of redemption, p. 266. 162. The Devolution of Estates Act, p. 268. 163. Locke King's Act, p. 271. 164. Estates of insolvent deceased persons, p. 273. 161. Devolution of equity of redemption. The mortgagor's interest in mortgaged land was at com- mon law merely a right to get back the estate upon perform- ance of the condition subject to which it was conveyed by the mortgage (a), but in equity it was regarded for many pur- poses as if it were an estate in the land (&). Although the mortgagor was not seised of the land (c), nevertheless equity followed the law and attached to the equity of redemption many of the incidents and characteristics belonging to legal estates. The equity of redemption might be mortgaged, con- veyed or devised as if it were the legal estate. On the death of the owner intestate it devolved like the legal estate (d) so much so that if the legal ownership of the land was subject to some peculiar custom of descent, such as that applicable to land held in borough-english or gavelkind, the equitable in- terest devolved according to the custom (e). (a) See chapter 2, Mortgage at Common Law, 12. (6) See chapter 3, Legal Mortgage in Equity, 21, 28. (c) Copestake v. Hoper, [1908] 2 Ch. 10. See further reference to this case in chapter 3, 29. (d) As to the present mode of devolution in Ontario, see the Devolution of Estates Act, in 162, infra. (e) See In re Hudson, Cassels v. Hudson, [1908] 1 Ch. 655. Apart from statute, if the assignee of the equity of redemption pays off a mortgage of land and takes it with a declaration against merger, even though it is expressly stated in the declaration that the mort- 161. DEVOLUTION OF EQUITY OF REDEMPTION 267 Apart from statute, lands held by any person in fee sim- ple upon any trust or by way of mortgage are subject to escheat (/), but an equitable estate or interest does not escheat for such an estate or interest is a mere creature of equity and not a subject of tenure ( It is further provided by the Registry Act, ss. 63-66, as follows : 63. Where a loan corporation which has acquired the assets of another loan corporation by amalgamation of such corporation and the certificate of such amalgamation has been registered desires to discharge any of the mortgages of such corporation it shall be suffi- cient to set forth in the instrument to be registered the fact of the assent of the Lieutenant-Governor in Council to such amalgamation with the date of the certificate of amalgamation and its registered number in the registry division in which the land affected is situate, or mentioning the Act by which the loan corporations were amalga- mated or by which the agreement was ratified, and upon registration 'of the discharge the registrar shall enter in the abstract index the facts mentioned in the discharge. 64. (1) Where a mortgage has been paid off by any person advancing money by way of a new loan on mortgage on the same land and the mortgage so paid off or the discharge thereof is held (tt) See chapter 4, Law and Equity in Upper Canada, 33, and infra, 184. - 183. STATUTORY FORM OF DISCHARGE. 305 by the mortgagee 1 making the now loan, the discharge of the mort- gage so paid off shall be registered within six months from the date thereof, unless the mortgagor shall, in writing, have authorized the retention of the discharge for a longer period. (2) The -registration shall not affect the right, if any, of the mortgagee who may have paid off such mortgage, his assignee, or any person claiming undor him by purchase or otherwise, to be sub- rogated to the rights of the mortgagee whose mortgage debt has been so paid (v). 65. (1) Where the person entitled to receive the mortgage money arl to discharge a registered morl^s: >. is not the original mortgagee, he shall, at his own expense, cause to be registered before tho registration of the certificate of discharge all the instruments or documents through which he claims interest in and title to the mortgage money, and until such instruments or documents are reg- istered the registrar shall not register such certificate of discharge. (2) The certificate shall mention the date and tho date of reg- istration and the registration number of each of the instruments or documents through which the person executing the certificate claims interest in and title to the mortgage money, and tho names of tbe parties thereto. (3) This section shall apply to powers of attorney where the certificate of discharge or prior instrument or document is executed by attorney, provided that it shall be sufficient in the certificate of discharge to state the date of each instrument, document or power of attorney and the names of the parties thereto, and to endorse on tho certificate the date of registration and registration number of each instrument, document, or power of attorney, which endorse- ment shall be signed by the person who signed the certificate, or his attorney or agent, and the endorsement shall be deemed to be part of the certificate. (4) Where probate of will or letters of administration with the will annexed is required to be registered under this section, and the will is ovon seven folios in length, including the probate or let- tors, and does not affect land in the registry division, except in so far as the testator was the holder of a mortgage, it shall not be necessary to record the will at full length; but it shall be sufficient to deposit a copy of and record so much of the probate or letters as shows the grant of probate or letters and the appointment of exe- cutors and administrators. (5) The copy shall be accompanied by an affidavit of the exe- cutors or administrators, or of one of them, or of his or their soli- citor, verifying it and stating that there is nothing in tho will limit- (v) As to the right of subrogation, see chapter 8, The Registry Act, 78. 306 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. ing the right of the executors or administrators to receive the mort- gage money and discharge the mortgage, and that the will does not affect land in the registry division in which the probate or letters is to be registered, except in so far as the testator was the holder of a mortgage comprising land in such registry division. (6) Where the person whose duty it is to register such instru- ments or documents refuses or neglects to register the same within fifteen days after the payment of the mortgage money to him, the person entitled to redeem the mortgage may, on giving ten days' notice in writing to the person so refusing or neglecting, apply in a summary manner to a Judge of the County or District Court- of the county or district wherein the land or any part thereof mentioned in the mortgage is situate for an order directing that the person so refusing or neglecting shall within a time to be fixed by the Judge, register such instruments or documents at his own expense, and the Judge, upon being satisfied by affidavit or oral evidence that the application is a proper one, may make the necessary order. (7) On being satisfied of the due service of the notice the Judge may proceed in the absence of the person so refusing or neglecting. (8) The notice shall state that it is given in pursuance of this section. 66. (1) Where the holder of a mortgage desires to release or discharge part of the land comprised in it, or to release or dis- charge part of the money secured by the mortgage, he may do so by deed or by certificate to be made, executed, proven, and regis- tered in the same manner and with the like effect to the land or money released or discharged as when the whole land and mortgage are released and discharged (to). (2) The deed or certificate shall contain as precise a descrip- tion of the land released or discharged as is required in an instru- ment of conveyance for registration, and also a precise statement of the particular sum so released or discharged. The certificate of discharge, not containing words of con- veyance and being an instrument that operates as a convey- ance only by virtue of the statute, should conform with rea- sonable strictness thereto (x) . Prior to the 29th day of March, 1873, it was necessary that (w) See In re Ridout, 1853, 2 U.C.C.P. 477. (x) It is, however, provided by the Interpretation Act, R.S.O. 1914, c. 1, s. 28 (d), that "where forms are prescribed, deviations therefrom not affecting the substance or calculated to mislead, shall not vitiate them," unless the contrary intention appears. 183. STATUTORY FORM OF DISCHARGE. 307 the residence and occupation of the attesting witness to the certificate of discharge should be stated in the attestation clause (y). But since that date it has been unnecessary to state the residence and occupation of the witness in the attest- ation clause, and certificates registered before that date are not invalid by reason of their being omitted (z). The affidavit of execution of a certificate of a discharge of mortgage should set forth the name of the witness, his place of residence and addition, occupation or calling, but an instrument may be registered notwithstanding that the Christian name or names of the subscribing witness making the affidavit is or are set forth therein by initials or abbreviation and not in full (a). A mortgagee executed a statutory discharge which was incorrectly dated, and his agent in good faith and in order to make the instrument conform to the intention of the mort- gagee altered the date. The alteration was, under the circum- stances, immaterial, and the document as altered stated cor- rectly what was intended by the parties. The discharge was held to be valid (&). In case of the registration of an instrument amounting to an equitable mortgage or charge, which is or purports to be given as a security for the payment of a debt or liability incurred in respect of a purchase or delivery of goods oi 1 in respect of an advance or loan of money, but not purporting to convey the land, the instrument may be discharged and ihe land affected thereby released by the registration of a certificate of discharge (c). (y) 31 V. c. 20, s. 60, form J. (z) R.S.O. 1897, c. 136, s. 84. (a) R.S.O. 1914, c. 124, s. 35. (6) Sayles v. Brown, 1880, 28 Gr. 10. (c) R.S.O. 1914, c. 124, ss. 36, 69, and form 12. The form is very similar to form 10, quoted above. 308 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. A married woman may execute a discharge of mortgage (d). A sheriff or other officer who seizes a mortgage under a writ of execution or warrant and receives payment of the mortgage money may execute a discharge of the mortgage ( e ) . 184. Effect of disctiarge when registered. It is provided in Ontario by the Registry Act, R.S.O. 1914, c. 124, s. 67, as follows (/) : 67. Every certificate of payment or discharge of a mortgage or of the conditions therein or of the lands or any part thereof, by the mortgagee, his executors, administrators or assigns at any time given, and whether before or after the time limited by the mortgage for payment or performance, if in conformity with this Act, shall, when registered, be a discharge of the mortgage or of the lands in such certificate described, as the case may be, and shall be as valid and effectual in law as a release of the mortgage or of such lands and as a conveyance to the mortgagor, his heirs or assigns of the original estate of the mortgagor therein. S. 67 was first enacted in its present form in 1911 by the statute 1 G. 5, c. 17, s. 31. Prior to that time it and the pre- . (d) R.S.O. 1914, c. 150, s. 3, quoted in chapter 3, Mortgage at Common Law, 16. (e) R.S.O. 1914, c. 124, s. 68, quoted in chapter 12, Execution Creditors of the Mortgagee, 113. (/) In 1834 by the statute 4 W. 4, c. 16, provision was made in Upper Canada for the registration of a discharge of mortgage. By that statute it was provided that the discharge when registered should have the effect of defeating any title remaining vested in the mortgagee but not any other title. See chapter 4, Law and Equity in Upper Canada, 33. In 1865, by the statute 29 V. c. 24, it was de- clared that the discharge when registered should operate as a recon- veyance to "the mortgagor, his heirs, executors, administrators, or assigns," and in 1867, by the statute 31 V. c. 20, these words were added, "or any person lawfully claiming by, through or under him or them." Noble v. Noble, 1912, 27 O.L.R. 342, at p. 355. As to the history of the legislation with regard to discharges of mortgage^ see also Dilke v. Douglas, 1880, 5 O.A.R. 63, at p. 70. 184. EFFECT OF DISCHARGE WHEN REGISTERED. 309 decessor of the present s. 62 (g) formed one section in the fol- lowing terms (h) : 62. In the case of a registered mortgage, the registrar on re- ceiving a certificate, Form 10, executed by the mortgagee, or if the mortgage has been assigned, then by the assignee, or by such other person as may be entitled by law to receive the money and to discharge the mortgage, and duly proven in the manner provided for the proof of other instruments, shall, if the assignment ,or other document of title of the assignee or other person executing the certificate has been regis- tered, register the same, and record it and every affidavit attached to or endorsed on it, at full length in the proper order, in the regis- try book, and number it in like manner as other instruments are re- quired to be registered, recorded and numbered, and the certificate when registered shall be a discharge of the mortgage, and shall be as valid and effectual in law as a release of the mortgage, and as a conveyance to the mortgagor, his heirs, executors, administrators, or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor. It will be observed that under the former s. 62 a discharge might be executed by the mortgagee, or if the mortgage had been assigned, then by the assignee, or by such other person as might be entitled by law to receive the money and to dis- charge the mortgage, whereas under the present s. 67 a dis- charge must be executed by the mortgagee, his executors, ad- ministrators or assigns (i). Again, under the former s. 62 a discharge when registered operated as a conveyance to the mortgagor, his heirs, executors, administrators, or assigns, or any person lawfully claiming by, through or under him or them, of the original estate of the mortgagor, whereas under the present s. 67 it operates as a conveyance to the mortgagor, (g) See 183, supra. (h) 10 E. 7, c. 60, s. 62, re-enacting R.S.O. 1897, c. 136, s. 76, as amended by 7 E. 7, c. 29, s. 9. (0 In 1918 the present s. 62 was amended by the addition after the word "assigns" of the words "or by such other person as may be entitled by law to receive the money and to discharge the mortgage," but no similar change was made in s. 67 which alone declares what is to be the effect of a discharge when registered. As to the result of the omission, see 185, infra. 310 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. his heirs or assigns of the original estate of the mortgagor therein (j). Where a discharge was executed under a power of attor- ney which authorized the attorney to sell the principal's lands, execute deeds and give receipts for the consideration money, and upon payment of .all or any debts, to give proper and lawful acquittances and discharges for the same, it was held that the attorney had sufficient authority to execute the statutory form of discharge (k). It would appear that a certificate of discharge is inoper- ative to revest the lands unless the mortgage is registered (I}. The object of the enactment as stated by Lord Halsbury in construing a similar statute in England "was to get rid of conveyancing formalities and to make the receipt given under the statute to operate as though it were a conveyance ' ' (m). A certificate of discharge of mortgage operates as a re- conveyance, not upon its execution and delivery, but only upon registration (n). ,So where a certificate of discharge was lost before registration it was held that the disclaimer of the mortgagees, who were trustees, and the consent of their solicitors were not sufficient to enable the court to declare the petitioner entitled to the legal estate in fee simple (0). Before registration the discharge is a mere receipt or acknowl- (;') The present s. 67, in addition, contains the words "at any time given, and whether before or after the time limited by the mortgage for payment or performance, if in conformity with this Act." These words are taken from s. 12 of the Act respecting Mort- gages of Real Estate, R.S.O. 1897, c. 136, (see 185), which has been omitted from the present Mortgages Act. (fc) Lee v. Morrow, 1866, 25 U.C.R. 604. (1) R.S.O. 1914, c. 124, ss. 62, 67. (m) Hosking v. Smith, 1888, 13 App. Cas. 582, at p. 585. (n) Trust and Loan Company v. Gallagher, 1879, 8 O.P.R. 97; In re Music Hall^Block, Durable v. Mclntosh, 1884, 8 O.R. 225. (o) Re Moore, 1878, 8 O.P.R. 471. 184. EFFECT OF DISCHARGE WHEN REGISTERED. 311 edgment of the payment of money (p) ; and if not under seal is not an estoppel as to the fact of p.ayment (q). When the discharge has been registered, it operates as a conveyance, according to the words of the section, of the original estate of the mortgagor, whatever that was, and does not give a new estate derived from the mortgagee (r). As a mortgage in fee simple executed by a tenant in tail operates to vest the fee simple in the mortgagee it was thought that the registration of a discharge of such a mortgage would only revest an estate tail as being the original estate of the mortgagor (s), but it has been held that the discharge in such case has the effect of reconveying the land in fee simple (f). . A mortgagor or other person entitled to the equity of re- demption has a right to obtain at his own expense from the mortgagee a reconveyance of the mortgaged premises, includ- ing a covenant against incumbrances. He is not obliged to accept the simple discharge of mortgage prescribed by the statute (u). The purchaser of a mortgaged estate paid the amount due on the mortgage to the mortgagee, who executed a statutory discharge of the incumbrance, which recited that the money due upon the mortgage had been paid by the mort- gagor, and refused either to sign a discharge stating correctly the name of the purchaser as the person paying, or to execute a reconveyance in his favour, although the purchaser offered to furnish satisfactory proof, if desired, that he was the owner of the equity of redemption. The court, on a bill filed for that (p) Dilke v. Douglas, 1880, 5 O.A.R. 63, at p. 70. (q) Bigelow v. Staley, 1864, 14 U.C.C.P. 276. (r) Carter v. Grasett, 1888, 14 O.A.R. 685. (s) Re Dolsen, 1872, 4 U.C. Chy. Ch. 36; Lawlor v. Lawlor, 1881, 6 O.A.R. 312. (t) Lawlor v. Lawlor, 1882, 10 Can. S.C.R. 194. (u) McLennan v. McLean, 1879, 27 Gr. 54. 312 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. purpose, ordered the mortgagee to execute the reconveyance, and pay the costs of the suit (v). It is immaterial whether the name of the mortgagor, or of the person satisfying the mortgage, is inserted in the certifi- cate, or whether the name is altogether omitted (w). Upon registration of the discharge the estate will vest, not neces- sarily in the person whose name is inserted in the certificate, or in the person paying off the mortgage, but in the person who is entitled to the legal estate or who has the best right to call for it (x). Thus a mortgagor in his lifetime paid part of the mort- gage moneys, and after his death his widow paid the remain- der on behalf of his estate. The discharge recited that the mortgagor had satisfied the moneys due on the mortgage. It was held that the estate vested in the heirs-at-law, and that the misrecital was of no consequence (y). Where a mortgagor conveyed the equity of redemption subject to a mortgage, a discharge of which was registered on the same day as the deed, it was held that the deed must be. assumed to have been delivered before it was registered, and the discharge of the mortgage on registration operated as a reconveyance to the assignee of the mortgagor within the meaning of the act (z). In some circumstances where a person pays off an exist- ing first mortgage and registers a discharge of it, he may be entitled to be subrogated to the position of the first mortgagee (v) McLennan v. McLean, supra. (w) McLennan v. McLean, supra; Carrick v. Smith, 1874, 35 U.C.R. 348. (x) Hosking v. Smith, 1882, 13 App. Cas. 582; Robinson v. Tre- vor, 1883, 12 Q.B.D. 423; Fourth City Mutual Benefit Building So- ciety v. Williams, 1879, 14 Ch.D. 140; Crosbie-Hill v. Sayer, [1908] 1 Ch. 866. (V) Carrick v. Smith, 1874, 35 U.C.R. 348. (z) Imperial Bank of Canada v. Metcalfe, 1886, 11 O.R. 467. 184. EFFECT OF DISCHARGE WHEN REGISTERED. 313 as being the person best entitled to call for the legal estate in priority to the second mortgagee (a). A mortgage was held by an assignee for the benefit of the mortgagee who assigned it, and the mortgagor, without no- tice of such assignment, paid the mortgagee and obtained from him a discharge under the statute. The court held the payment good, and ordered the assignee to execute a release, it being doubtful whether under the circumstances the dis- charge from the mortgagee would revest the property in the mortgagor (&). An assignment of a mortgage for $1150* recited that the assignee had lent $1000 to the assignor for one year, on the promissory note of the assignor, and that the assignor had agreed to execute the assignment as collateral security. The assignor assigned the mortgage, the sum of $1150 and interest, and the benefit of all the powers, covenants and provisoes con- tained in the mortgage, with power to use the assignor's name, etc., and granted the lands mentioned in the mortgage, subject to the terms of the mortgage and subject to a special covenant by which the assignee agreed to reassign the mort- gage and the mortgage money and to reconvey the lands on repayment of the sum of $1000 and interest. It was held that the assignee had the right to receive the whole of the mort- gage money and give a discharge which upon registration would revest the mortgaged lands in the mortgagor (c). A mortgage, on her own property, made by a wife to the (a) Sangster v. Cochrane, 1884, 28 Ch. D. 298, and cases there cited; see also Brown v. McLean, 1889, 18 O.R. 533, and chapter 8, The Registry Act, 78. (6) McDonough v. Dougherty, 1862, 10 Gr. 42; see also Enger- son v. Smith, 1862, 9 Gr. 16. (c) Re Bland and Mohun, 1913, 30 O.L.R. 100, 16 D.L.R. 716. It is submitted, however, that a reassignment of the mortgage to the original mortgagee and a discharge by him would be more regular. As to the requisites of a valid assignment, see chapter 11, Assignee of Mortgage, 102. 314 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. plaintiffs, to which the husband was a party, but without con- veying or joining in the covenants, was given as collateral security for the payment of certain notes made by the hus- band and wife t), and therefore a vesting order cannot be made in the case of the mere absence of the mortgagee (w). (t) R.S.O. 1914, c. 121, s. 6, following the English statute 56 & 57 V. c. 53, s. 26. (u) In re Underwood, 1857, 3 K. & J. 745. (v) In the Ontario Trustee Act, as in the corresponding Eng- lish statute, it is provided that "trust" shall not mean the duties incident to an estate conveyed by way of mortgage. During the continuance of a mortgage there is no relation of trustee and cestui que trust between mortgagor and mortgagee. London and County Banking Co. v. Goddard, [1897] 1 Ch. 642, at p. 650. (w) Re Worthington and Armand, 1915, 33 O.L.R. 191, 21 D.L.R. 402, not following In re Keeler's Mortgage, 1863, 32 L.J. Ch. 101. It was pointed out that in the circumstances of the case an application might be made under s. 21 of the Conveyancing and Law of Property Act quoted above. 320 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. In 1915 the Mortgages Act, R.S.O. 1914, c. 112, s. 11 (x), was amended by the addition of the following sub-sections (y) : (2) Where it is impossible for a mortgagor or other person en- titled to pay off a mortgage and to receive a certificate of discharge thereof to pay the principal or interest accruing due at any time on such mortgage and to obtain a proper discharge thereof, owing to the whereabouts of the mortgagee, or of one or more of several mortgagees or other person or persons entitled to receive such pay- ment and to give such discharge, being unknown or for some other cause, the court may on the application of the mortgagor, or in the case of a mortgage to more persons than one as mortgagees, on the application of one of the mortgagees, direct payment into court of such principal or interest, and by the same or a subsequent order may direct payment out to any mortgagee of the portion thereof to which he is entitled. (3) Payment of such money into court shall effectually exon- erate therefrom the person making such payment, and when the total amount of the principal and interest due on such mortgage shall have been paid into court by the mortgagor he shall be en- titled to an order discharging such mortgage, and the registration of a certificate of such order in the proper registry office shall have the same force and effect as the registration of a certificate of dis- charge of the mortgage as provided by The Registry Act. (4) The application shall be made in chambers on originating notice in accordance with the practice of the Supreme Court. (5) The Judges of the Supreme Court may make rules in the manner provided by The Ontario Judicature Act with respect to rules of court for regulating the practice upon the application under subsections 2 to 4, for prescribing the proofs required to be furnished by the applicant as to the state of accounts, and for providing for the terms and conditions upon which an order may be made under sub-section 2. (6) The conditions may include the payment into court of an amount greater than the amount shown to be due on the mortgage or may require security to be given by the mortgagor or other per- son applying, as the judge may deem proper. (x) This section is quoted in chapter 13, Persons entitled on Death of the Mortgagee, 124. It validates payment of the mortgage money to, and receipt by, the survivor or survivors of two or more mortgagees or the personal representatives of the survivor. (2/) 5 G. 5, c. 21, s. I. 187. DISCHARGE UNDER THE LAND TITLES ACTS. 321 187. Discharge under the Land Titles Acts. A mortgage under the land titles system does not convey the legal estate or transfer the land to the mortgagee, but has effect as security merely, (z). Therefore the mortgagee has no estate to be reconveyed on payment of the mortgage, and a discharge does not operate as a reconveyance of the mort- gagee's estate to the mortgagor or other person best entitled, as under the system of registration of deeds (a). The state of the title is that which appears from time to time on the register and the effect of the registration of a discharge is simply to get rid of the mortgage in whole or in part as a charge upon the estate of the registered owner. It is provided in Manitoba by the Real Property Act, R.S.M. 3913, c. 171, s. 112, as follows: 112. Upon the production of any memorandum of discharge of mortgage or encumbrance, duly executed, discharging the whole or. part of such mortgage or encumbrance or the whole or part of the land comprised in such mortgage or encumbrance from the moneys thereby secured, the district registrar shall make an entry in the register, noting that such mortgage or encumbrance is discharged wholly or partially or that part of the land is discharged as afore- said, as the case may require; and, upon such entry being made, such mortgage or encumbrance shall be released to the extent named in such memorandum of discharge (&). It is provided in Saskatchewan by the Land Titles Act. 1917, s. 118, as follows (c) : 118. (l)-Upon production to the registrar of: (a) A memorandum of discharge, duly executed, and attested, disckarging the whole or part of a mort- gage or encumbrance, or the whole or a part of the land therein comprised; or (z) See chapter 10, The Land Titles Act*, 93. (a) See 181, 182 and 184. (&) Under ss. 74 and 90 a similar entry must be made on the duplicate certificate of title unless production thereof is dispensed with under the provisions of the statute, and under s. 127 the cer- tificate of charge, if any, must be delivered up or its loss or destruc- tion proved. 322 CHAPTER XIX. DISCHARGE OR RECONVEYANCE. (b) a certificate signed by a judge that payment of the whole or a part of the moneys due under a mortgage or encumbrance has been proved to his satisfaction; the registrar shall make an entry on the register that the mortgage or encumbrance is discharged wholly or in part, or that part of the land is discharged, as the case may be. (2) Upon such entry being made the land, or the estate or in- terest in the land, or the portion of the land mentioned or referred to therein shall cease to be liable for such principal sum or annuity or for the part thereof mentioned in the entry as discharged, as the case may be. Provisions similar in effect to those of the Saskatchewan statute are contained in the Laud Titles Acts of Alberta (d) and the Northwest Territories (e), except that the last men- tioned statutes provide for the production of the mortgage or encumbrance having endorsed thereon or attached thereto a receipt or acknowledgment in the prescribed form, and the Alberta statute also provides that "where it is stated in the mortgage or encumbrance that the money has been advanced on joint account" the receipt or acknowledgment may be signed by ' ' the surviving mortgagee or encumbrancee. ' ' It is provided in Manitoba (/) 'that if a mortgagor becomes entitled to pay off a mortgage, and the mortgagee is absent from the province and there is no person in the province auth orized to receive the money and execute a discharge, after the date appointed for the redemption of the mortgage, payment may be made to the provincial treasurer. (c) 1917 (2nd sess.), c. 18> s. 118. Provision is made by s. 119 for the discharge of an encumbrance, and by ss. 50 and 54 for the making of an entry on the duplicate certificate of title. (d) 1906, c. 24, s. 63, as amended by 1911-12, c. 4, s. 15. Pro- vision is also made by s. 71, as amended by 1911-12, c. 4, s. 15, for the production of the certificate of charge, if any, or proof of its loss or destruction, and by ss. 20 and 25 for the making of an entry on the duplicate certificate of title. (e) R.S.C. 1906, c. 110, s. 100. Provision is made by s. 41 for the making of an entry on the duplicate certificate of title. (/) R.S.M. 1913, c. 171, s. 125. 187. DISCHARGE UNDER THE LAND TITLES ACTS. 323 In Saskatchewan, Alberta and the Northwest Territories (g) it is provided that if a mortgagor becomes entitled to pay off the mortgage money and the registered mortgagee is absent and there is no person authorized by registered power of at- torney to give a receipt, after the date appointed for redemp- tion, a judge may direct payment, in the case of Saskatchewan, to the provincial treasurer, and in the case of Alberta and the Northwest Territories, to a chartered bank. The Saskatchewan statute also has a similar provision if the registered mort- gagee is deceased and has no personal representative. In Ontario it is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 37, as follows : 87. (1) The proper master of titles shall, on the requisition of the registered owner of any land and on due proof of the satisfac- tion of a charge thereon, or may, on the requisition of the regis- tered owner of a charge or of his personal representative or on his certificate of the satisfaction thereof, note on the register in the pre- scribed manner, by cancelling the original entry or otherwise, the cessation of the charge, and thereupon the charge shall cease. (2) The master may in like manner and with the like effect note the cessation of any other encumbrance. (3) On the requisition or certificate of the registered owner of a charge or of. the personal representative of such owner authoriz- ing or certifying the discharge of any part of the land therefrom or the discharge of any part of the money thereby secured, the mas- ter may note on the register the discharge of such land from the charge or the discharge of such part of the money and thereupon as to the land or money discharged the charge shall cease. (4) The death of the person who signed the requisition or cer- tificate shall not revoke or otherwise affect the same. (fir) Sask. statutes, 1917 (2nd sess.), c. 18, s. 120; Alta. statutes, 1906, c. 24, s. 65; R.S.C. 1906, c. 110, s. 102. CHAPTER XX. RIGHT TO ASSIGNMENT OF MORTGAGE. 191. Reconveyance to the person best entitled, p. 324. 192. Statutory right to assignment of mortgage instead of reconveyance, p. 326. 193. The amending statute, p. 329. 194. Priorities unaffected by the statute, p. 330. 195. Assignment on the same terms as reconveyance, p. 335. 196. Statute not applicable to mortgagee in possession, p. 336. 191. Reconveyance to the person best entitled. The effect of a legal mortgage is to transfer the legal estate in the land to the mortgagee and to create in favour of the mortgagor a right to redeem the mortgage. The effect of a sec- ond mortgage is to transfer to the second mortgagee the right to redeem the first mortgage and to create in favour of the mortgagor a new right, namely, to redeem the second mortgage (a) . In other words, the mortgagor, by making the second mortgage has interposed the second mortgagee between himself and the first mortgagee, so that the three persons may be thought of as standing in a row the first mortgaget having the legal estate, the second mortgagee next entitled, and lastly the mortgagor. In the event of a further mortgage being made, a similar result follows. Each new mortgage has. the effect of interposing a new mortgagee in the row of per- sons immediately prior to the mortgagor, and the persons in- terested will be entitled in succession the first mortgagee, the second mortgagee, the third mortgagee, etc., the mort- gagor (&). Each mortgage after the legal mortgage will ne- (a) Cf. chapter 14, Transferee of the Equity of Redemption, 131. (&) Cf. Langdell, Brief Survey of Equitable Jurisdiction, p. 9. 191. WHO ENTITLED TO RECONVEYANCE 325 cessarily be merely an equitable mortgage (c), but each of the persons interested will be potentially entitled to the legal es- tate in succession, in the event of prior claims ceasing to exist. The mortgagor may of course at any time convey the land absolutely subject to the mortgage or mortgages existing at the time of conveyance and the grantee will take the mort- gagor's place in the succession of persons interested (d). No person who redeems a mortgage is entitled to call for an assignment of the mortgage otherwise than by virtue of a contract to that effect or by virtue of the statute mentioned below (e). Apart from statute or a special agreement a mortgagee on being redeemed is obliged merely to reconvey the mortgaged estate (/). The mortgagee is bound to reconvey to the person best entitled to the estate (g), that is, to the owner of the equity of redemption, if there is no subsequent encumbrancer, otherwise to the first subsequent encumbrancer (ft), but he is not obliged to convey to any other person who by virtue of the conveyance would acquire the position of mortgagee in priority to persons better entitled to the legal estate (i). If the mortgagee, instead of reconveying, executes a discharge in the statutory form, this discharge upon regis- tration will in the case of a registered mortgage operate as a reconveyance of the estate to the person best entitled (j). (c) See chapter 5, Equitable Mortgages, 43. (d) See chapter 14, 132. (e) See 192, infra. (/) Gooderham v. Traders Bank, 1888, 16 O.K. 438, at p. 441. (fir) Cf. chapter 19, Discharge or Reconveyance, 182. (7i) Smith v. Green, 1844, 1 Coll. 555, at p. 563. (i) James v. Biou, 1819, 3 Swan. 234, at p. 241; Dunstan v. Pat- terson, 1847, 2 Ph. 341, at p. 345; Colyer v. Colyer, Pawley v. Colyer, 1863, DeG. J. & Sin. 676, at p. 693; cf. 21 Halsbury, Laws of England, p. 170; Fisher, Law of Mortgages, 6th ed., p. 989. (/) See chapter 19, 184. 326 CHAPTER XX. RIGHT TO ASSIGNMENT. 192. Statutory right to assignment of mortgage instead of reconveyance. It is now provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 132, s. 3, as follows (k). 8. (1) Notwithstanding any stipulation to the contrary where a mortgagor is entitled to redeem he may require the mortgagee, in- stead of giving a certificate of payment or reconveying, and on the terms on which he would be bound to re-convey, to assign the mort- gage debt and convey the mortgaged property to any third person as the mortgagor directs; and the mortgagee shall be bound to assign and convey accordingly. (2) The right of the mortgagor to require an assignment shall belong to and be capable of being enforced by each incumbrancer or by the mortgagor, notwithstanding any intermediate incumbrance; but a requisition of an incumbrancer shall prevail over that of the mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over that of a subsequent incumbrancer. (3) This section shall not apply if the mortgagee is or has been in possession. Sub-ss 1 and 3 are derived from the English statute of 1881, 44 & 45 V. c. 41, s. 15, and sub-s. 2 from the amending statute of 1882, 45 & 46 V. c. 39, s. 12. The words "giving a certificate of payment or" are not in the English statute. As already pointed out, a certificate of discharge when registered operates in Ontario as a reconveyance (I). Sub-ss. 2 and 3 will be discussed later (m). The leading case in England as to the original statute of 1881 is Teevan v. Smith (ft) in which Jessel, M.R., says (a) : "We must remember what the law was before that Act was pass- ed. A mortgagor had only a right to redeem and to have a recon- (fc) By s. 2 (d) it is provided that "mortgagor" shall include any person deriving title under the original mortgagor or entitled to redeem a mortgage, according to his estate, interest or right in the mortgaged property, and "mortgagee" shall include any person deriving title under the original mortgagee. (I) See chapter 19, Discharge or Reconveyance, 184. (m) As to sub-s. 2, see 193; as to sub-s. 3, see 196. () 1882, 20 Ch.D. 724. (o) 20 Ch.D. 724, at pp. 728-9. 192. STATUTORY RIGHT TO ASSIGNMENT. 327 veyance on payment of the mortgage debt, Hence a difficulty arose, for lenders were willing to advance money if they could have a transfer of the mortgage security, but were not willing to take se- curity directly from the mortgagor, dreading intermediate incum- brances. At that time the debt was not transferable, so that a power of attorney was necessary; therefore the old decisions were right in laying down that a mortgagee was not to be required to run the risk of being made liable to costs, which he might be, if he trans- ferred the debt to a third person. Now the difficulty has been got rid of, by making the debt transferable at law, so that no power of at- torney is required and all ground of objection on the part of a mort- gagee to transfer the security is taken away. It can do him no harm in any way." The words ' ' where a mortgagee is entitled to redeem ' ' are explained by Jessel, M.R., as follows (p) : "[The section] says, 'where a mortgagor is entitled to redeem.' Every mortgagor is entitled to redeem, but there is a difference in their rights. Where there is one mortgagor and one mortgagee, there, of course, his right to redeem is absolute. But where there are several successive mortgagees the mortgagor can redeem the next to him without redeeming any other; but if he wishes to redeem any anterior mortgage, he must also redeem all those who are between that mortgagee and himself. A puisne mortgage indeed is in rather a worse position than this; for, although he is entitled to redeem those above him, he cannot do so without foreclosing those between himself and the ultimate equity of redemption (q). So that the words 'where a mortgagor is entitled to redeem' really includes every mortgagor, except a mortgagor who is precluded by some special term in his mortgage deed from redeeming within a specific time. For although the law will not allow a mortgagor to be precluded from re- deeming altogether, yet he may be precluded from redeeming for a fixed period, such as five or seven years (r). That is why the words 'where a mortgagor is entitled to redeem* are inserted. They mean where a mortgagor is not precluded from redeeming for a certain time by some special stipulation." A mortgagor who has conveyed away the equity of redemp- tion acquires a new right to redeem if he is sued on the cov- enant for payment and becomes again a mortgagor "entitled (p) Teevan v. Smith, 1882, 20 Ch. D. 724, at p. 729. (q) See chapter 25, Action for Redemption, 257. (r) See chapter 25, 252. 328 CHAPTER XX. RIGHT TO ASSIGNMENT. to redeem" within the meaning of the statute if there are no subsequent encumbrancers (s). The key to the meaning of the statute lies in the words "instead of reconveying. " Jessel, M.R., says (t) : "Then [the section] says, 'he shall have power to require the mortgagee, instead of reconveying, and on the terms on which he would be bound to reconvey, to assign the mortgage debt and convey the mortgaged property to any third person.' It is only 'instead of reconveying.' The section assumes two things: first, that the mort- gagee is bound to reconvey to the person applying to him, and, sec- ondly, that the transfer is to be instead of a reconveyance. Thon see how it works. Where there are first and second mortgagees, and the first mortgagee has notice of the second, when he is paid off he be- comes a trustee of the legal estate for him. The word 'reconvey' is the proper word to use; it is strictly a reconveyance. If the first mortgagee is paid off by the mortgagor, he is not bound to reconvey the estate to him; but if he is paid off by the second mortgagee, he he is bound to reconvey it to him. The second mortgagee is a mort- gagor under the definition of the Act. He is an assign of the mort- gagor and is entitled to redeem. It appears to me that no person can avail himself of [sub-s. 1] who is not entitled to call for a re- conveyance of the estate from the mortgagee. The Act never intended to effect any change in the person who was entitled to call for a reconveyance. "There is another point, which does not arise in the view which I take of the section, but which I may mention. Every person who is behind the first mortgagee is entitled to redeem, and is a mort- gagor within the meaning of the section, and if there are several successive mortgagees of the same mortgagor, which of them has a right in priority to the others to call upon the first mortgagee to assign the mortgage? It must be that one who is next to him. The first incumbrancer has the first right to redeem, and it is impossible to suppose that it was intended that a puisne mortgagee was to have the right to call for a transfer of the first mortgage, before one who is prior to himself. "It is alleged that there was a tender in this case by the mort- gagor, but a tender is not payment; and according to my view of the case, it would have been immaterial, even if there had been actual payment by the mortgagor. If before the reconveyance is made the second mortgagee calls on the first to reconvey he must have the prior right. He is the mortgagor of the estate as between himself (s) Queen's College v. Claxton, 1894, 25 O.R. 282, at p. 289. (t) Teevan v. Smith, 1882, 20 Ch.D. 724, at pp. 729, 730. 192. STATUTORY RIGHT TO ASSIGNMENT. 329 and all behind him, and he has the prior right to require a re- conveyance or a transfer." 193. The amending statute. After the decision in Teevan v. Smith (it) the English statute of 1881 (v) was amended by the addition of the pro- vision which is now contained in R.S.O. 1914, c. 112, s. 3, sub-s. 2, as follows: (2) The right of the mortgagor to require an assignment shall belong to and be capable of being enforced by each incumbrancer or by the mortgagor, notwithstanding any intermediate incum- brance; but a requisition of an incumbrancer shall prevail over that of the mortgagor, and as between incumbrancers a requisition of a prior incumbrancer shall prevail over that of a subsequent incum- brancer. It has been said that the amendment overruled the con- structioii placed upon sub-s. 1 in Teevan v. Smith, namely, that the mortgagee could be required to transfer the mortgage only at the direction of the person who was entitled to a re- conveyance, that is, the first subsequent encumbrancer (iv). This statement is, however, susceptible of being misunder- stood, unless it is qualified by reference to the opinions ex- pressed that the effect of the amendment is to confirm the de- cision in Teevan v. Smith so far as it was there held that the word "mortgagor" in the principal act means the person who has, in priority to all other persons interested, the right to call upon the first mortgagee to transfer the mortgage, and to leave unaffected that decision so far as it lays down the rule that the consent of a mesne encumbrancer is still neces- sary to enable a subsequent encumbrancer or the mortgagor, as the case may be, to require a transfer instead of a recon- (11) 1882, 20 Ch.D. 724. See 192, supra. (v) I.e., sub-ss. 1 and 3 of R.S.O. 1914, c. 112, s. 3. See 192, supra, (w) 21 Halsbury, Laws of England, p. 170, note (d). 330 CHAPTER XX. RIGHT TO ASSIGNMENT. veyance (x). It is said also that the amending act throws upon the mortgagee the burden, to which he was not previous- ly subject, of determining which among several encumbranc- ers who may require an assignment is entitled to priority (y), and that the mortgagee cannot safely transfer the mortgage to the mortgagor or his nominee without -the consent of puisne encumbrancers of whose charges he has notice (z). Where the plaintiffs in a foreclosure action held first, sec- ond and fourth encumbrances and a jointress was entitled as third encumbrancer, a special decree was made providing, inter alia, that in the event of the jointress redeeming the plaintiffs, the plaintiffs as fourth encumbrancers should have a further period within which to redeem and that upon their paying to the jointress all that should be found due upon the taking of the account she should convey and assign to them subject to the jointure, liberty being reserved to apply subse- quently to have the conveyance and assignment made to trus- tees (a). 194. Priorities unaffected by the statute. When a mortgage is paid off the statute under discussion provides in effect that the person who in priority to all other persons interested would be entitled to require a reconvey- ance of the estate from the mortgagee, may require the mort- gagee to transfer the mortgage instead of reconveying the estate, but it does not make any change in the priorities inter (x) Coote, Law of Mortgages, 8th ed. ( vol. 2, p. 1441, citing Kin- naird v. Trollope, 1888, 39 Ch. D. 636, and West London Commercial Bank v. Reliance Permanent Building Society, 1885, 29 Ch. D. 954. To the same effect, see Fisher, Law of Mortgages, 6th ed., p. 989; Leitch v. Leitch, 1901, 2 O.L.R. 233, at pp. 236, 237. (y) Leitch v. Leitch, supra, citing Fisher on Mortgages. (z) Fisher v. Mortgages, loc. cit., approved in In re Magneta Time Co., Molden v. The Company, [1915] W.N. 318, 84 L.J. Ch. 814. (a) Smithett v. Hesketh, 1890, 44 Ch.D. 161. 194. PRIORITIES UNAFFECTED BY THE STATUTE. 331 se of the persons interested ( 6 ) . The cases decided since the passing of the statute may therefore be used to illustrate the questions of priority which may arise as between the mort- gagor and the second mortgagee and as between the mortgagor and the assignee of the equity of redemption. As between the mortgagor who has paid off the first mort- gage and the person to whom he has made a second mortgage, the latter is entitled to priority, and the first mortgagee, on being paid off, must' not assign his mortgage to the mortgagor or his nominee without the consent of the second mortgagee (c). Similarly, if the first mortgagee Js himself the' second mortgagee, under a mortgage from the same mortgagor, he is entitled for his own protection to refuse to give the mortgagor an assignment of the first mortgage, just as he would be en- titled to refuse to reconvey, except subject to the second mort- gage (d). But the case is different if the first mortgagee holds a sec- ond mortgage made not by the original mortgagor but by a purchaser of the equity of redemption, as, for instance, if a mortgage is made by B to A, a conveyance of the land by B to C subject to the mortgage, and then a second mortgage by C to A. The original mortgagor is under no responsibility for the second mortgage, and if he pays off the first mortgage there is no equity in the mortgagee's favour as against the mortgagor which would entitle the mortgagee to refuse to give the mortgagor an assignment of the first mortgage (e). The question whether the original mortgagor is entitled to keep the mortgage alive as a first charge on the land as (&) See 192 and 193, supra. (c) Teevan v. Smith, 1882, 20 Ch.D. 724. (d) Rogers v. Wilson, 1887, 12 O.P.R. 322, 545. (e) Kinnaird v. Trollope, 1888, 39 Ch.D. 636; Wheeler v. Brooke, 1894, 26 O.R. 96. 332 CHAPTER XX. RIGHT TO ASSIGNMENT. against the purchaser of the equity of redemption will be next discussed. As between the mortgagor who pays off a mortgage and the assignee of the equity of redemption, the question whe- ther the mortgagor is entitled to require the mortgagee to assign the mortgage depends upon the terms upon which the equity of redemption has been assigned and is independent of the circumstance that there is or is not a second mortgage. 'If the equity of redemption has been assigned in such cir- cumstances that as between the mortgagor and the assignee the latter is liable to pay the mortgage, as, for instance, in the ordinary case of the sale of the equity of redemption where the purchaser assumes payment of the mortgage, the mort- gagor on paying the mortgage is entitled to require it to be assigned to him so as to keep it alive as a charge on the land in order that he may recoup himself for the money paid by him which the purchaser ought to have paid (/). A mortgagor of land conveyed his equity of redemption to several grantees, one of whom agreed to pay off the mort- gage, and some of whom also executed further mortgages upon the land. The first mortgagee proceeded to foreclose and to sue the mortgagor upon his covenant, whereupon the latter requested the first mortgagee to assign his mortgage to a third person who advanced the money and paid off the mort- gage. It was held that the first mortgagee was bound to exe- cute the assignment as asked, notwithstanding the subsequent incumbrances, and that even if the redemption money had been that of the mortgagor himself, it would have made no difference (g). (/) Hamilton Provident Loan and Investment Co. v. Smith, 1888, 17 O.R. 1; Queen's College v. Claxton, 1894, 25 O.R. 282; Wheeler v. Brooke, 1894, 26 O.R. 96. (9) Queen's College v. Claxton, 1894, 25 O.R. 282, distinguishing Teevan v. Smith, 1882, 20 Ch. D. 724, and following Kinnaird v. Trol- lope, 1888, 39 Ch. D. 636. 194. PRIORITIES UNAFFECTED BY THE STATUTE. 333 If, on the other hand, the equity of redemption has been assigned in such circumstances that as between the mortgagor and the assignee the former is liable to pay the mortgage, the mortgagor on paying the mortgage is not entitled to require it to be assigned to him, because the keeping of the charge alive would be inconsistent with his obligation to give the land to the assignee free from encumbrance (7i). A purchaser of the equity of redemption may redeem the mortgage as fully as the mortgagor himself might have done, and on the same terms, but the purchaser of an equity of re- demption subject to a charge which is his own proper debt, or which he is under contract, express or implied, to discharge, cannot keep such charge alive against a mesne incumbrance, which by the terms of contract of purchase, express or im- plied, the purchaser was also bound to discharge (i). Mortgagors of land sold it subject to the mortgage, the pur- chaser giving them a second mortgage to Secure part of the purchase money. The purchaser then sold the land subject to both mortgages, which his sub-purchaser covenanted to pay off. .Subsequently the first mortgagors, under a threat of ac- tion, paid the claim of the first mortgagees, and took an assign- ment of the first mortgage to one of themselves. It was held that the sub-purchaser, upon being called on by the first mort- gagors and first purchaser for indemnity against the first mortgage, was bound to pay it, and was not entitled to an assignment thereof without also paying the second mort- gage (j). The owner of property mortgaged it and then sold subject to the mortgage, taking from the purchaser as part of his pur- (7i) Muttlebury v. Taylor, 1892, 22 O.R. 312; Thompson v. War- wick, 1894, 21 O.A.R. 637. (i) Blake v. Beaty, 1855, 5 Gr. 359; Thompson v. Warwick, 1894, 21 O.A.R. 637; Muttlebury v. Taylor, 1892, 22 O.R. 312. (/) Thompson v. Warwick, supra. 334 CHAPTER XX. RIGHT TO ASSIGNMENT. chase money a second mortgage, which he assigned to the first mortgagee. The purchaser then sold to a sub-purchaser, who, to obtain an extension of time on the first mortgage, entered into a covenant with the mortgagee to pay it, and afterwards sold the property. In a foreclosure action the mortgagee claimed an order for the payment of the first mortgage by the sub-purchaser under his covenant, and the latter refused to pay the amount due on it unless the mortgagee would assign the mortgage to him ; but it was held that the mortgagee was not bound to assign unless the sub-purchaser paid off both mortgages (fc). Where two mortgages had been created on a leasehold in- terest in rectory lands, the equity of redemption in which was afterwards sold at a sheriff's sale, and the purchaser paid off the prior mortgage, it was held that the purchaser being bound to protect the mortgagor against both incumbrances was not at liberty to keep alive the prior mortgage as against the second mortgagee (I). A mortgagee who purchases the equity of redemption is entitled to keep his mortgage alive as against an intervening execution creditor of the mortgagor, in the absence of any act manifesting a contrary intention, but where after purchasing the equity of redemption he releases his mortgage, that is strong evidence that there was no intention to preserve his priority (m). Where a person interested in the equity of redemption, but not personally liable for the mortgage debt, pays off a mort- gage, the question whether it is or is not extinguished is one of intention (n). (k) Muttlebury v. Taylor, supra. (I) McDonald v. Reynolds, 1868, 14 Gr. 691. (m) Buckley v. Wilson, 1861, 8 Gr. 566. (n) See chapter 21, Merger, 201. 195. ON SAME TERMS AS RECONVEYANCE. 335 195. Assignment on the same terms as reconveyance. The statute (o) provides that the mortgagee may be re- quired to assign the mortgage "on the terms on which he would be bound to reconvey. ' ' This phrase refers not merely to the amount of the principal, interest and costs, but also to' the terms generally. The mortgagor cannot by an assignment get a higher or better title to the estate than that to which he would be entitled under a reconveyance. The assignment must be subject to the rights of other persons interested in the equity of redemption. Thus, where lands are mortgaged and then settled on the mortgagor as tenant for life with remain- ders over, the mortgagor, on redeeming, is entitled to call for an assignment to a third person only upon the terms that the assignment shall be subject to the rights of those interested under the settlement (p). If there are persons interested in the equity of redemption other than the person- redeeming, the reconveyance of the estate or the assignment of the mortgage should be made sub- ject to the rights of all parties interested (q). If a person who has only a partial interest in the equity of redemption redeems a mortgage, the reconveyance or the as- signment to him should be qualified accordingly. The owner of land mortgaged it and then, reserving a life estate to him- self, conveyed it in fee subject to the mortgage. The grantee paid off the mortgage and required an assignment of it. It was held that he was not entitled to an absolute assignment of the mortgage because as between him and his grantor he was bound to discharge the grantor's life estate from the mortgage, but that he was entitled to have the mortgage a*s- (o) See 192, supra. (p) Alderson v. Elgey, 1884, 26 Ch.D. 567. (9) Kinnaird v. Trollope, 1888, 39 Ch.D. 636; Gooderham v. Traders Bank, 1888, 16 O.K. 438: Stark v. Reid, 1895. 26 O.R. 257. 336 CHAPTER XX. RIGHT TO ASSIGNMENT. signed to him in such a way that it would remain an en- cumbrance on the remainder in fee vested in him (r). 196. Statute not applicable to mortgagee in possession. The statute (s) provides that it shall not apply if the mortgagee is or has been in possession. ' The reason why a mortgagee in possession cannot be required to give an assign- ment of the mortgage instead of reconveying is that he re- mains liable to account as mortgagee in possession notwith- standing the transfer (t) ; and although a transfer at the re- quest of the mortgagor or an encumbrancer might release him from this liability as regards the mortgagor or such encum- brancer, he would not be released as regards other person* interested in the equity of redemption . Hence after a mort- gagee has been in possession he cannot with safety transfer his security except under the direction of the court (u). A mortgagee in possession may, however, be required to give a reconveyance (v). Mortgagees in possesion of the mortgaged lands afterward* acquired by transfer a second mortgage on the same lands, and then brought action on the covenant for payment in the first mortgage against the original mortgagors, who had parted with the equity of redemption before the second mortgage was given. It was held that although the defendants were not entitled to an assignment of the mortgage, because the mort- gagees were in possession, they were entitled, on paying the first mortgage, to a reconveyance for the purpose of enabling them to maintain a charge upon the estate for the money paid (r) Leitch v. Leitch, 1901, 2 O.L.R. 233, followed in Jones v. Shortreed, 1907, 14 O.L.R. 142. (s) See 192, supra. (t) See chapter 28, Mortgagee in Possession, 304. 00 Hall v. Reward, 1886, 32 Ch. D. 430, at p. 435; 21 Halsbury, Laws of England, p. 170. (v) Stark v. Reid, 1895, 26 O.R. 257. 196. MORTGAGEE IN POSSESSION. 337 by them, such reconveyance to be subject to the rights of re- demption of all other persons interested in the equity of re- demption (w). (w) Stark v. Reid, supra, following Kinnaird v. Trollope, 1888, 39 Ch.D. 636. It was also held in Stark v. Reid that the mortgagees were not entitled to tack the amount of the second mortgage to that of the first and require payment of both. See chapter 9, Consolida- tion and Tacking, 87. CHAPTER XXI. MERGER. 201. Merger at law and in equity, p. 338. 202. Intention expressly declared, p. 341. 203. Intention gathered from circumstances of transaction, p. 342. 204. Intention presumed from consideration of benefit, p. 343. 205. Purchase with notice of subsequent charges, p. 346. .201. Merger at law and in equity. If a mortgage on land and the ownership of the land sub- ject to the mortgage became united in the same person, the mortgage was at law merged 'in the ownership and the mort- gage was extinguished, either by analogy to the merger of a less estate in a greater or because a man cannot be his own debtor. In equity, however, merger did not necessarily follow upon the union of the two interests, and the equitable rule now prevails by reason of the provision of the Judicature Act that in case of conflict or variance between the rules of equity and the rules of law the rules of equity shall prevail (a). It is also specifically provided in Ontario by the Convey- ancing and Law of Property Act, R.&.O. 1914, c. 109, s. 36, as follows (b) : (a) Cf. 21 Halsbury, Laws of England, 318; R.S.O. 1914, c. 56, s. 22 (as to which, see chapter 4, Law and Equity in Upper Canada, 35). (6) The provision in question was formerly contained in the Judicature Act, R.S.O. 1897, c. 51, s. 58 (3), re-enacting 44 V. c. 5, s. 17 (4), which in this respect was copied from the English Judi- cature Acts. The same equitable rule that merger is a question of intention applies both to the merger of estates and to the merger of charges. Cf. 13 Halsbury, Laws of England, 146; Capital and ' Bounties Bank v. Rhodes, [1903] 1 Ch. 631. 201. MERGER AT LAW AND IN EQUITY 339 36. There shall not be any merger by operation of law only of any estate, the beneficial interest in which, prior to The Ontario Judicature Act, 1881, would not have been deemed merged or ex- tinguished in equity. If the owner of land pays off a charge which he is per- sonally liable to pay, he is not permitted, even by express declaration, to keep the charge alive so as to set it up against subsequent encumbrancers to whom he is liable (c), but, with this exception, merger in equity is a question of intention on the part of the person in whom the two interests unite (d). In Forbes v. Moffatt (e) Grant, M.R., said: "It is very clear, that a person, becoming entitled to an estate, subject to a charge for his own benefit, may, if he chooses, at once take the estate, and keep up the charge. Upon this subject a Court of Equity is not guided by the rules of law. It will sometimes hold a charge extinguished, where it would subsist at law; and sometimes preserve it, where at law it would be merged. The question is upon the intention, actual or presumed, of the person, in whom the in- terests are united. In most instances it is, with reference to the party himself, of no sort of use to have a charge on his own estate; and, where that is the case, it will be held to sink, unless something shall have been done by him to keep it on foot." In North of Scotland Mortgage Co. v. Udell (/) Hagarty, C.J. said: (c) 21 Halsbury, Laws of England, 324, 318; 13 Halsbury, op. Git., 146-148; Otter v. Lord Vaux, 1856, 6 DeG. M. & G. 638, at p. 642; Platt v. Mendel, 1884, 27 Ch.D. 246, at p. 251; Blake v. Beaty, 1855, 5 Gr. 359. For a discussion of the rule stated in the text, for which Otter v. Lord Vaux is the chief authority, see Manks v. White- ley, [1912] 1 Ch. 735, at pp. 755, 758, 759; s.c. reversed, on other grounds, sub nom. Wfaiteley v. Delaney, [1914] A.C. 132. (d) Thorne v. Cann, [1895] A. C. 11, at pp. 18, 19, 18 R.C. 552, at p. 559; Donisthorpe v. Porter, 1762, 2 Eden 162. (e) 1811, 18 Ves. 384, at p. 390, 17 R.C. 380, at p. 384. In this case the actual intention not being established from the declaration or acts of the party, the intention against merger was inferred from the consideration that it would be for the benefit of the owner of the charge that merger should not take place. See 204. (/) 1882, 46 U.C.R. 511. See also North of Scotland Mortgage Co. v. German, 1880, 31 U.C.C.P. 349; British and Canadian Loan and Investment Co. v. Williams, 1888, 15 O.R. 366. 340 CHAPTER XXI. MERGER. "From all the authorities I gather that in the simple case of the mortgagee taking a conveyance of the equity of redemption, the or- dinary presumption is, that the charge, as against the mortgagor, is merged or incapable of being enforced, at least so as to call for evi- dence to show a contrary intent or result. Romilly, M.R. in Tyrivhitt v. Tyrwhitt (g) said: "The rule is this: prima facie the charge merges in the inheri- tance, but the presumption may be rebutted if it be shown that the intention of the owner of the charge was that it should not merge. Three tests are usually applied for the purpose of ascertaining whether the owner of the charge intended that it should merge in the inheritance at the time when he became entitled to the absolute interest of the charge. First, any actual expression of that intention; secondly, when the form and character of the acts done are only consistent with the keeping the charge on foot; and thirdly, such an intention may be presumed, when though a total silence in all other respects pervades the matter, it appears that it is for the interest of the owner of the charge that it should not merge in the inheritance." The presumption in favour of merger does not arise unless the absolute interest in the charge and in the estate subject to the charge unite in the same person during his life . Thus, no presumption arises where the estate in fee of the person entitled to the charge is subject to limitations which only be- come capable of taking effect by his death, or where the owner of the estate charged has during his life merely a reversionary interest in the charge (ft). If a stranger pays off a mortgage on an estate there is no presumption of merger. Presumably he does not intend to discharge the mortgage but intends to keep it alive for his own benefit (i). "Where a third party, at the request of a (0) 1863, 32 Beav. 244, at p. 249; cf. Thome v. Cann, [1895] A. C. 11, at pp. 18, 19; 18 R.C. 552, at p. 559. (ft) Wyndham v. Lord Egremont, 1775, Ambl. 753; Wilkes v. Collin, 1869, L.R. 8 Eq. 338. As to the presumption against merger in the case of the payment of a mortgage by the tenant for life, see 204. (1) Butler v. Rice, [1910] 2 Ch. 277, at p. 282; Chetwynd v. Allen, [1899] 1 Ch. 356. 201. MERGER AT LAW AND IN EQUITY 341 mortgagor, pays off a first mortgage, with a view of himself becoming a first mortgagee of the property, he becomes, in default of evidence of intention to the contrary, entitled in equity to stand, as against the property, in the shoes of the first mortgagee" (j). 202. Intention expressly declared. Where a presumption of merger arises by reason of the union in the same person of a charge and of an estate of in- heritance in the property charged, such presumption may be rebutted by a declaration that the charge shall be kept on foot for the benefit of his personal estate (fc), or by- clear expres- sions of such intention in the instrument which effects the union of the charge and the estate (I). Even an express declaration against merger will not keep the charge alive if there are circumstances pointing con- clusively to merger (m), but where there is such a declaration it is not necessary, as is sometimes done (n), to take a con- veyance either of the charge or of the estate to a trustee so as to prevent a merger at law (0). If, owing to a common mistake induced by the misconduct of the mortgagor, the deeds as framed do not express the true intention of the parties, they may be rectified under the equit- able jurisdiction of the court so as to express such intention. Thus, land was subject to a first mortgage to A and to a second (/) Crosbie-Hill v. Sayer, [1908] 1 Ch. 866, at p. 877; Fourth City Mutual Benefit Building Society v. Williams, 1879, 14 Ch.D. 140. Cf. Whiteley v.- Delaney, [1914] A.C. 132, in 202, infra. As to the right of subrogation of a person who pays off a mortgage, see also chapter 8, The Registry Act, 78. (fc) Bailey v. Richardson, 1852, 9 Hare 734; Jameson v. Stein, 1855, 21 Beav. 5. (0 Phillips v. Gutteridge, 1859, 4 DeG. & J. 531; In re Gibbon, Moore v. Gibbon, [1909] 1 Ch. 367. (m) In re Gibbon, ubi supra, at p. 374. (n) Bailey v. Richardson, ubi supra, at p. 736. (o) This follows a fortiori from the cases which allow merger 342 CHAPTER XXI. MERGER. mortgage to M, and F agreed with L (a purchaser of the property), to advance money on the security of a first mort- gage, for the purpose of paying off A's mortgage. The mort- gagor did not disclose the existence of M 's mortgage and con- sequently the transaction was carried out in a form which would prima facie have the effect of extinguishing A's mort- gage, namely by (1) a reconveyance by A to the mortgagor, (2) a conveyance by the mortgagor to L, (3) a mortgage by L to P, and delivery of the title deeds to F. In an action by M, who claimed that his mortgage had become the first mortgage, it was held that the plaintiff was not entitled to priority, on the following grounds, namely, (1) that the deeds could have been rectified in the action if the defendants had counterclaimed for that relief and that a court of equity would not in the circumstances enforce in favour of a volun- teer (p) a title based upon deeds framed under a common mistake, (2) that F having acquired in equity the priority of A's mortgage by paying the mortgage debt and obtaining the title deeds, the plaintiff could not take advantage of the wrong of the mortgagor, through whom he claimed, to deprive F of that priority (q). 203. Intention gathered from circumstances of transaction. In the absence of an expressed intention against merger, the presumption of merger arising from the union of a charge to be rebutted by evidence of intention derived from the circum- stances, without express declaration, although there is no intervening trustee. 21 Halsbury, Laws of England, p. 321. As to such cases, see 203, infra. (p) The plaintiff was a volunteer as regards the new priority claimed by 'him; although he had given value for his mortgage. (g) Whiteley v. Delaney, [1914] A.C. 132, reversing Manks v. Whiteley, [1912] 1 Ch. 735. In the view of the case taken by the House of Lords it was unnecessary to express an opinion as to the correctness of the decision in Toulmin v. Steere, 1817, 3 Mer. 210 203. INTENTION GATHERED FROM CIRCUMSTANCES. 343 and of an estate of inheritance in the property charged may be rebutted by the circumstances attending the transaction, as for instance where the debt is not released t>ut the mortgage and the mortgagee's rights are transferred to the owner of the estate (r). The presumption in favour of merger may be rebutted by an act on the part of the person in whom the charge and the estate have become united indicating his intention to keep the charge alive (s), and correspondence at the time or oral evi- dence of conduct and dealings relating to the property is admissible to explain the intention (). A transfer of the mortgage to a trustee is not conclusive evidence against the presumption, and in particular circum- stances merger may take place notwithstanding such a trans- fer (u). On the other hand the presumption of merger may be rebutted by evidence of intention derived from the circum- stances notwithstanding that there is no transfer of either the charge or the estate to a trustee (v). 204. Intention presumed from consideration of benefit. In the absence of evidence of actual intention, either ex- press or gathered from the circumstances of the transaction (see 205, infra), a decision which was much discussed in the Court . of Appeal. (r) Thome v. Cann, [1895] A.C. 11, at p. 19, 18 R.C. 552, at pp. 559-5oO. There were in this case also other circumstances showing the intention to keep the mortgage alive. Cf. Reeves v. Konschur, 1909, 2 S.L.R. 125. (s) Jones v. Morgan, 1783, 1 Bro. C. C. 206; Lord Compton v. Oxenden, 1793, 4 Bro. C. C. 396; Tyler v. Lake, 1832, 4 Sim. 53. (t) Hood v. Phillips, infra; Astley v. Milles, 1827, 1 Sim. 298, at p. 341; Adams v.'Angell, 1877, 5 Ch.D. 634; Macdonald v. Bulli- vant, 1884, 10 O.A.R. 582. (u) Hood v. Phillips, 1841, 3 Beav. 513, at p. 518, 18 R.C. 535, at pp. 538, 539. (v) 21 Halsbury, Laws of England, 321; Watts v. Symes, 1851. 1 DeG. M. & G. 240; Adams v. Angell,' supra. 344 CHAPTER XXI. MERGER. (w), the presumption of merger ordinarily arising from the union of a charge and the estate subject to the charge may be rebutted by the consideration that it is more for the benefit of the owner of the charge and the estate that merger should not take place, as, for instance, if the effect of merger would be to confer priority upon subsequent encumbrancers (x). It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 9, as follows : 9. (1) A mortgagee of freehold or leasehold property, may take and reecive from the mortgagor a release of the equity of re- demption in such property, or may purchase the same under any judgment or decree or execution without thereby merging the mort- gage debt as against any subsequent mortgagee or person having a charge on the same property. (2) Where a prior mortgagee so acquires the equity of redemp- tion of the mortgagor no subsequent mortgagee shall be entitled to foreclose or sell such property without redeeming or selling, subject to the rights of such prior mortgagee, in the same manner as if such prior mortgagee had not acquired the equity of redemption. (3) This section shall not affect any priority or claim any mort- gagee may have under the registry laws (y) . When the original of this statute was passed, some legis- lative enactment was deemed necessary in view of the then general understanding of the effect of Toulmin v. Steere, 1817, 3 Mer. 210 ; but since the passing of the statute the course of judicial decision in England has reduced the danger which that case was supposed to cause to conveyancers (z). The statute is to be strictly construed and does not prevent merger where merger is necessary in order to give effect to the inten- tion of the parties (a). (w) See 202, 203, supra. (x) Forbes v. Moffatt, 1811, 18 Ves. 384, 17 R.C. 380; Davis v. Barrett, 1851, 14 Beav. 542; Elliott v. Jayne, 1865, 11 Gr. 412; Wea- ver v. Vandusen, 1880, 27 Gr. 477; Maclennan v. Gray, 1888, 16 O.R. 321, S. C. 16 O.A.R. 224, 18 Can. S.C.R. 553. (y) See chapter 8, TJie Registry Act. () See 205, infra. (a) Armstrong v. Lye, 1900, 27 O.A.R. 287, and cases cited at PP. 292, 294. 204. CONSIDERATION OF BENEFIT. 345 Where a mortgagee purchases the equity of redemption at a sheriff's sale this will have the effect of merger as to the mortgagor although not as to a mesne encumbrancer (&). In British Columbia it has been held that a conveyance of the equity of redemption by a mortgagor to a mortgagee of lands does not constitute a discharge of the mortgage by mer- ger, unless it is made to appear that such a result was in- tended by the parties ; and when a mortgagee applies to regis- ter a conveyance of the equity of redemption the registrar should not mark the mortgage merged unless at the request of the mortgagee (c). The purchaser of an equity of redemption took an assign- ment of a charge upon the property and paid off the encum- brancer. It was held that the charge was not extinguished for there was no evidence in the deed or in the circumstances of an intention to extinguish the charge, and it was for the purchaser's benefit that it should be kept alive (d). If a tenant for life pays off a charge on the inheritance, he is prima facie entitled to that charge for his own benefit, but he may, if he thinks proper, exonerate the estate. In the absence of evidence to the contrary, the presumption is that he pays the charge for his own benefit and not for the benefit of the persons entitled in remainder, notwithstanding that he makes no declaration and does no act to demonstrate his in- tention (e). A. B., being tenant for life of the testator's real estate, subject to a charge, and absolutely entitled to the residuary personal estate, paid off the charge and obtained (&) Woodruff v. Mills, 1860, 20 U.C.R. 51; R.S.O. 1914, c. 80, 8. 33 (see chapter 16, Execution Creditors of the Mortgagor, 154). (c) In re Major, 1897, 5 B.C.R. 244. (d) Liquidation Estates Purchase Co. v. Willoughby, [1898] A. C. 321. See also the discussion of the subject matter of 204 in Manks v. Whiteley, [1912] 1 Ch. 735, at pp. 760 ff.; S.C. reversed, on other grounds, sub nom. Whiteley v. Delaney, [1914] A.C. 132. (e) Adams v. Angell, 1877, 5 Ch.D. 634, at p. 645. 346 CHAPTER XXI. MERGER. releases. At the time he conceived that as residuary legatee he was liable to pay the amount out of the personal estate, which was sufficient for the purpose, and nothing was done to keep the charge on foot. After the death of the tenant for life, it being determined that the amount of the charge was . a primary charge on the real estate, it was held that it still subsisted as a charge on the settled estate for the benefit of the personal representatives of the tenant for life (/). 205. Purchase with notice of subsequent charges. In Toulmin v. Steere (g), Grant, M.R., enunciated the rule that the purchaser of "an equity of redemption cannot set up a prior mortgage of his own, nor, consequently, a mortgage which he has got in, against subsequent incumbrances of which he had notice, ' ' the notice in that case being constructive. But to a certain extent this is clearly wrong, as the purchaser can by actual intention keep alive a charge which he has got in, or which he has paid off, against charges of which he has notice (7i). This leaves Toulmin v. Steere as an authority merely (/) Burrell v. Earl of Egremont, 1843, 7 Beav. 205, 18 R.C. 540; cf. In re Harvey, Harvey v. Hobday, [1896] 1 Ch. 137; Lord Gifford T. Lord Fitzharding, [1899] 2 Ch. 32. (gr) 1817, 3 Mer. 210, at p. T24. The paragraph in the text relat- ing to this case follows substantially 21 Halsbury, Laws of England, p. 325, note (o), except that since that note was written the judg- ments in the House of Lords in Whitcley v. Delaney, [1914] A. C. 132, have cast further doubt ujrcn the correctness of the rule enunci- ated in Toulmin v. Steere. See rlso the adverse criticism of Toulmin v. Steere in the dissenting judgment of Fletcher Moulton, L.J. in the Court of Appeal in the same case (sub nom. Manks v. Whiteley, [1912] 1 Ch. 735, at pp. 759 ft" ? ; cf. article by A. E. Randal; in 28 L.Q.R. 348 (Oct., 1912), in whirh it is said that the Court of Appeal had, "by a majority, rescued Toulmin v. Steere from a position of suspended animation, and rein tc.ted it to its position of a living danger to conveyancers." .As 'o the actual decision in Whitrley v. Delaney, see 202. (7i) Adams v. Angell, 18"". 5 Ch.D. 634. 205. NOTICE OF SUBSEQUENT CHARGE. 347 that, in the absence of actual intention, whether expressed or shown by the circumstances, the presumption against mer- ger will not apply in his favour, and beyond this it will not be extended (i). But even to this extent it is opposed to prin- ciple. There is no reason for giving the second mortgagee a benefit at the expense of the purchaser of the equity of re- demption who is under no liability to pay him (./'); and the decision has been frequently questioned (k). (i) Stevens v. Mid-Hants Ry. Co., 1873, L.R. 8 Ch. 1064; Adams v. Angell, supra. (j) Stevens v. Mid-Hants Ry. Co., supra. (fc) See e.g., Watts v. Symes, 1851, 1 DeG. M. & G. 240, at p. 244; Thorne v. Cann, [1895] A.C. 11, at p. 16, 18 R.C. 552, at p. 557; Liquidation Estates Purchase Co. v. Willoughby, [1896] 1 Ch. 726, at p. 734, S.C. [1898] A.C. 321. In the Privy Council the doctrine of Toulmin v. Steere has been held not to be applicable in a court ad- ministering rules of justice, equity and good conscience, apart from technical conveyancing considerations. Gokuldoss Gopaldoss v. Ram bux Seochand, 1884, L.R. 11 Ind. App. 126. PART VI. MORTGAGE ACTIONS. CHAPTER XXII. ACTION FOR POSSESSION. 211. Concurrent remedies of the mortgagee, p. 349. 212. Possession as between mortgagor and mortgagee, p. 350. 213. Mortgagee's right in absence of redemise, p. 353. 214. Proviso for quiet enjoyment until default, p. 355. 215. Rights of mortgagor in possession, p. 358. 216. Mortgagee's rights against third parties, p. 360. 217. Possession under the Land Titles Acts, p. 360. 211. Concurrent remedies of the mortgagee. After default had been made under a mortgage, the mort- gagee might, before the Judicature Act, pursue his various remedies by action at law or suit in equity concurrently. He might sue in equity for foreclosure or sale, and at the same time bring an action at law on the covenant for payment (a) and an action for possession of the mortgaged land (&). Since the Judicature Act and under the present rules of practice he may ask for all these remedies in one action, and it will usually be in connection with an action for foreclosure or sale that he will seek to recover possession (c). It is provided in Ontario by rule 460 as follows : 460. A mortgagee may in an action claim foreclosure of the equity of redemption or a sale of the mortgaged premises, and pay- Co) Lockhardt v. Hardy, 1846, 9 Beav. 349, 18 R.C. 434. See chapter 23, Action on the Covenant. (6) Booth v. Booth, 1742, 2 Atk. 343. (c) See chapter 24, Action -for Foreclosure or Sale, where the procedure in a combined mortgage action is outlined. 350 CHAPTER XXII. ACTION FOR POSSESSION. ment of the mortgage debt by any person personally liable therefor and possession of the mortgaged premises. In addition to his remedies by action a mortgagee may have some remedies which are available without application to the court (d). In this chapter will be discussed the right to possession as between the mortgagor and the mortgagee and as between the mortgagor or mortgagee and third parties. The right to pos- session may be enforced by action if the person in possession wrongfully refuses to give up possession. If the mortgagee is or becomes entitled to possession against the mortgagor he may of course bring an action for possession without seeking foreclosure or sale, and whether he is entitled to forclosure or sale or not. 212. Possession as between mortgagor and mortgagee. In the absence of any provision in the mortgage reserving the right of possession to the mortgagor or of any agreement express or implied to the same effect, a legal mortgagee is entitled, after the making of the mortgage and by virtue of the conveyance to him of the legal estate, to take possession of the mortgaged lands at any time (e). It is usual, however, in On- tario to insert in a mortgage a proviso that the mortgagor until default shall have quiet possession of the lands (/), and in any case, until the mortgagee demands possession, the mortgagor's possession is lawful (gr). On the other hand, as an equitable mortgage does not con- vey the legal estate (7i) the former rule was that an equitable (d) See chapter 31, Sale under Power of Sale; chapter 32, Ap- pointment of Receiver; chapter 33, Attornment and Distress. (e) See 213, infra. Cf. chapter 2, Mortgage at Common Law, 12. (/) See 214. (g) See 215. (ft) See chapter 5, Equitable Mortgages, 41. 205. WHO ENTITLED TO POSSESSION. 351 mortgagee was not entitled to bring an action of ejectment against the mortgagor. An action for possession, however, is not now liable to be defeated on the ground of the absence of the legal estate,- it being sufficient for the pur- pose of the action that the plaintiff should be entitled to pos- session as against the defendant (i). Therefore, where a sec- ond mortgage has been created by conveyance of the equity of redemption, and the first mortgagee does not take possession, the second mortgagee, since he is entitled to possession as against the mortgagor, has probably a right to take possession (j), and certainly has such right if the mortgage expressly gives it to him (&) In the case of other equitable mortgagees, the equitable equivalent to the taking of possession is the ap- pointment by the court of a receiver of the rents and pro- fits (I). .If a mortgagee is entitled to possession as between himself and the mortgagor, and the land is in the occupation of the mortgagor or of any other person whose title is not superior to that of the mortgagee (wi), the mortgagee may enter on the. (i) General Finance, Mortgage and Discount Co. v. Liberator Permanent Benefit Building Society, 1878, 10 Ch.D. 15, at p. 24. (;') See 21 Halsbury, Laws of England, p. 190, note (i), where it is stated that the dictum of North, J. in Garfitt v. Allen, Allen v. Longstaffe, 1887, 37 Ch.D. 48, at p. 50, that an equitable mortgagee cannot take possession, applies only where, as in that case, the en- cumbrance is by mere charge. See, however, Vacuum Oil Co. v. Ellis, [1914] 1 K.B. 693, at p. 703. (fc) Ocean Accident and Guarantee Corporation v. Ilford Gas Co., [1905] 2 K.B. 493. It is usual in Ontario to insert in a mort- gage a covenant on the mortgagor's part that on default taking place the mortgagee shall have quiet possession. See 214, infra. (I) See chapter 32, Appointment of Receiver, 351. (m) For instance, a tenant under a lease made after the mort- gage without the authority of the mortgagee. See chapter 15, Lessee of Mortgaged Land, 143. 352 CHAPTER XXII. ACTION FOR POSSESSION. land if he can do so peaceably (n) or may bring an action for possession (o). If the land is in the occupation of a tenant under a lease which is binding on the mortgagee, the mort- gagee may take possession by requiring the tenant to pay rent to him (p). In either case, after obtaining possession, he be- comes liable to account as a mortgagee in possession (). If a plaintiff seeks delivery of possession it is important that the claim should be contained in the endorsement on the (v) Clarke v. Cooper, 1892, 15 O.P.R. 54. 398 CHAPTER XXIV. FORECLOSURE OR SALE. writ of summons or in the statement of claim, and that an order for possession should be inserted in the judgment (w), In Ontario a writ of summons in an action for foreclosure or sale may be "specially endorsed" (x) so as to entitle the plaintiff to take advantage of rules 56 and 57. Under rule 56, where the writ is specially endorsed, the defendant must with his appearance file an affidavit that he has a good defence upon the merits and shewing the nature of his defence, with the facts and circumstances which he deems entitle him to defend the action (y), and under rule 57 the plaintiff may thereupon cross-examine upon such affidavit and move for judgment (z), and if the court is satisfied that the defendant has not a good defence to the action on the merits, or has not disclosed such facts as may be deemed sufficient to entitle him to defend the action, judgment may be given for the plaintiff. (w) See Wills v. Luff, 1888, 38 Ch.D. 197. As to enlarging the claim contained in the endorsement on the writ of summons by claiming possession, see 235, infra. (x) That is to say, the plaintiff who claims all or any of the remedies authorized by rule 460 and uses the form of endorsement above quoted, may also use a special form of writ which requires the defendant, within the time allowed for appearance, to file and serve an affidavit showing the nature of his defence, and contains a "warning" that in default of the filing and service of such affidavit judgment will be entered and execution issued. Under the former rules it had been held that if a mortgagee "specially endorsed" his writ with a claim for foreclosure and for immediate delivery of pos- session, and for immediate payment he was not entitled to move for summary judgment for the recovery of possession, although if he had claimed merely possession or payment or both he might have moved for summary judgment. Independent Order of Foresters v. Pegg, 1900, 19 O.P.R. 80. Cf. Central Trust Co. v. Algoma Steel Co., 1903, 6 O.L.R. 464. Rule 33 now expressly provides for the special endorsement of a writ of summons in actions for foreclosure or sale. If a writ is specially endorsed the specific claim should be followed by the words, "and the plaintiff further claims $ for costs." (y) An affidavit is not necessary where an appearance is entered by the official guardian for an infant or lunatic. () The plaintiff need not file an affidavit on the motion, and he 233. PLAINTIFFS IN ACTION. 399 233. Plaintiffs in tlie action. If there are two or more mortgagees they must both or all be parties to the action, whether they be joint tenants or ten- ants in common of the lands conveyed by the mortgage, and therefore one of the mortgagees may bring a foreclosure action and make his co-mortgagees defendants, if they will not join as plaintiffs (a). Where several persons have advanced mort- gage moneys in distinct shares, one of such persons cannot maintain an action for forclosure of a proportionate part of the estate (6). In such a case one of the mortgagees may Taring an action to foreclose the mortgage making his co-mort- gagees defendants, and is entitled to judgment for foreclos- ure on default in payment of the whole mortgage debt in the proportions due to the several mortgagees separately (c). If a mortgage is vested in two persons jointly as trustees or otherwise, the survivor may maintain an action for fore- closure without joining as parties the personal representatives of the deceased mortgagee if the latter had no beneficial inter- est in the mortgage (d). In Ontario under the Devolution of Estates Act the real and personal property of a deceased person devolves upon and becomes vested in his personal representatives, but in the case of real property not disposed of, conveyed to or distributed may move without cross-examining. The fate of the motion depends upon the defendant's depositions. Langdon-Davies Motors Canada v. Gasolectric Motors, 1914, 32 O.L.R. 84. (a) Luke v. South Kensington Hotel Company, 1879, 11 Ch.D. 121; In re Continental Oxygen Co., Elias v. The Company, [1897] 1 h. 511. (&) Palmer v. The Earl of Carlisle, 1823, 1 Sim. & St. 423, 18 R.C. 491. (c) Davenport v. James, 1847, 7 Hare 249. (d) Landale v. McLaren, 1892, 8 M.R. 322; Plenderleith v. Smith, 1905, 10 O.L.R. 188; see s. 4 of the Mercantile Law Amend- ment Act, quoted in chapter 13, Persons entitled on Death of the Mortgagee, 124. 400 CHAPTER XXIV. FORECLOSURE OR SALE. among the persons beneficially entitled within three years, it becomes vested in the latter, subject to the registration by the personal representatives of a caution or of successive cau- tions. The statute also contains a special provision as to the powers of the personal representative of a deceased person who was entitled to any freehold land by way of mortgage (e) . It is further provided by rule 74, as follows : 74. (1) Trustees, executors, and administrators may sue and be sued on behalf of, or as representing, the property or estate of which they are trustees or representatives, without joining any of the persons beneficially interested, and shall represent them; but the court may at any time order any of them to be made parties in addition to, or in lieu of, the previous parties. (2) This rule shall apply to an action to enforce a security by foreclosure or otherwise. In a suit brought by executors of a mortgagee to foreclose it was held that the heirs of the deceased mortgagee or the persons beneficially entitled under his will were not necessary parties (/). Where a mortgage is vested in trustees the cestui que trust or one of the cestuis que trust may bring action for foreclosure of the entire mortgaged estate. But the trustees must be made parties to such an action (g). Where a mortgage is taken in the name of one partner to secure a partnership debt and a bill is filed by him to enforce the security, the representatives of a deceased partner are not necessary parties (7i). The Married Women's Property Act (i) enacts that every woman whether married before or after the act shall have in (e) For a fuller statement of these provisions, see chapter 13, Persons entitled on Death of the Mortgagee, 123. (/) Lawrence v. Humphries, 1865, 11 Gr. 209. (fir) Wood v. Williams, 1819, 4 Madd. 186, 20 R.R. 291. (7i) Stephens v. Simpson, 1866, 12 Gr. 493. (t) R.S.O. 1914, c. 149, s. 16. 233. PLAINTIFFS IN ACTION. 401 her own name against all persons whomsoever, including her husband, the same remedies for the protection and security of her own separate property, as if such property belonged to her as a feme sole. When, therefore, a married woman ad- vances on mortgage moneys which are her separate property, it is no longer necessary that she should sue for foreclosure or sale by a next friend, or that she should give security for costs 0'). The assignee of the mortgagee's estate in the land may sue for foreclosure or sale, but to enable him to sue upon the covenant an assignment of the mortgage debt is necessary (k). If a sheriff seizes a mortgage under a writ of execution against the lands of the mortgagee, he may bring an' action for foreclosure or sale ( I) . 234. Original defendants. As already pointed out any persons partially or jointly interested in the mortgage security who are not plaintiffs in an action for foreclosure must be made defendants. All persons who are interested in the ultimate equity of redemption must be made defendants, but while it is the ordi- nary rule of practice that parties to an action should be joined at its inception and that after judgment parties cannot be added (m), some exceptions are made in the case of an action for foreclosure or sale. In the first place, persons having any liens, charges or encumbrances (n) upon the mortgaged prop- erty subsequent to the plaintiff 's mortgage should not be made parties by the writ of summons but should be added in the (j) Threlfall v. Wilson, 1883, 8 P.D. 18. (fc) See chapter 11, Assignee of the Mortgagee, 101 and 102. (0 See chapter 12, Execution Creditors of the Mortgagee, 112; R.S.O. 1914, c. 80, s. 27. (m) Johnston v. Consumers Gas Co., 1896, 17 O.P.R. 297. (n) Including subsequent mortgagees, execution creditors and mechanics lienholders. 402 CHAPTER XXIV. FORECLOSURE OR SALE. master's office pursuant to the judgment in the action (o). In the second place it is provided in Ontario by rule 490 as follows : 490. (1) Where one or more of the persons interested in the equity of redemption are already defendants, and it is made to ap- pear that by reason of their number or otherwise, it is expedient to permit the action to proceed without the presence of the other per- sons interested in the equity of redemption, the court may giy di- rections accordingly, and may order such other persons to be made parties in the master's office after judgment. (2) Where after judgment it appears that persons are interested in the equity of redemption besides those who are already parties, such persons may be made parties in the master's office upon such terms as may seem just. Under the first clause of the rule either an interlocutory order may be made or a special provision may be inserted in the judgment, but such provision should not be inserted in a judgment obtained on praecipe (p). Upon a motion to add parties in the master's office notice should be given to the parties already before the court, but it is not' necessary to notify the persons whom it is intended to add as parties (q). The application must be made before final order of foreclosure or sale (r). Notwithstanding this rule the court will require the plain- tiff to frame his action with diligence and to bring the proper parties before the court in the first instance (s). t (o) Jackson v. Hammond, 1879, 8 O.P.R. 157; Nelson v. Coch- rane, 1889, 13 O.P.R. 76; see 238, infra. (p) See further notes to this rule in Holmested, Ontario Judi- cature Act, 4th ed., 1084 ff. (q) Penner v. Canniff, 1868, 1 Chy. Ch. Ont. 351; Rumble v. Moore, 1868, 1 Chy. Ch. 59; Harrison v. Grier, 1869, 2 Chy. Ch. 440. In Cummins v. Harrison, 1868, 1 Chy. Ch. 369 the order was granted ex parte. (r) Municipality of Orford v. Bayley, 1868, 1 Chy. Ch. 272; Street v. Dolan, 1871, 3 Chy. Ch. 227. (s) Paterson v. Holland, 1860, 8 Gr. 238; Buckley v. Wilson, 1861, 8 Gr. 566. 234. ORIGINAL DEFENDANTS. 403 "If parties will not take the trouble (more or less according to circumstances) to bring the proper parties before the court, they have only themselves to blame, but they have no right to cast that labour upon the court and turn it into a court of inquiry for their convenience." (t) Everyone whose interests may be affected by the accounts to be taken in the action must be brought before the court either as plaintiff or as defendant. In an action for foreclos- ure or sale the interests of a mortgagee who has priority over the plaintiff cannot be affected by the accounts taken in the action, since the amount found to be due will be a charge on the property only subject to the claim of the prior mortgagee. A prior mortgagee therefore is not a necessary party to an action for foreclosure or sale (u). On the other hand in a redemption action (i>) all subsequent mortgagees and the owner of the ultimate equity of redemption must be joined as defendants for the purpose of foreclosing them. Hence the maxim, you may foreclose without redeeming, but you cannot redeem without foreclosing. When a person seeks to redeem he joins all mortgagees up to the mortgagee whom he seeks to redeem parties and offers to redeem them; he also joins as parties all the mortgagees subsequent to him and the owner of the ultimate equity of redemption and asks for the foreclosure of them. If the action is for foreclosure of sale, the plaintiff need not join prior mortgagees. He need join as parties only those persons whom he seeks to foreclose (w). Accordingly a person who has a title paramount to the mortgage in respect of which foreclosure or sale is sought should not ordinarily be made a party at all and will not be affected by the proceedings. The ordinary remedy of the subsequent mortgagee against a prior mortgagee is merely to (t) Portman v. Paul, 1864, 10 Gr. 458. (u) Crawford v. Meldrum, 1872, 19 Gr. 165. (v) See chapter 25, Action for Redemption, 257. (w) Strahan, Law of Mortgages, 2nd ed. f pp. 157-158. 404 CHAPTER XXIV. FORECLOSURE OR SALE. redeem the prior mortgage. If, however, any relief is sought against any persons (other than subsequent encumbrancers whom it is sought to foreclose) they must be made parties by writ and they cannot be made parties in the master's office (#), unless the case comes within rule 490 already mentioned. So if the prior security was created by a 'deed absolute in form, a subsequent mortgagee is at liberty to make the prior mortgagee a party to his foreclosure action for the purpose of obtaining a declaration that the deed is really a mortgage and therefore redeemable, although he does not offer to redeem but merely seeks to foreclose or sell subject to the mortgage (y). The execution creditors of the alleged mortgagee are necessary parties to such an action (2). So where the plaintiff claimed that an execution against the mortgagor which was prior in time to the plaintiff 's mort- gage should be postponed, it was held that the execution cred- itor must be made a defendant by writ and could not be added in the master's office, but the plaintiff was allowed to have his judgment set aside, add the execution creditor as a party, and amend so as to raise the question of priority (a). A railway company took possession of certain lands and proceeded with an arbitration with the owners as to their value. The lands were subject to a mortgage to the plaintiffs, who received no notice of and took no part in the arbitration proceedings, and gave no consent to the taking of possession. An award was made but was not taken up by the railway com- pany Or the owners. In an action by the plaintiffs against the X (x) Hopper v. Harrison, 1880, 28 Gr. 22; Reinhart v. Sliutt, 1888, 15 O.R. 325. (y) Moore v. Hobson, 1868, 14 Gr. 703; Rogers v. Lewis, 1866, 12 Gr. 257. (z) Glass v. Freckleton, 1864, 10 Gr. 470; Darling v. Wilson, 1869, 16 Gr. 255. (a) Lally v. Longhurst, 1888, 12 O.P.R. 510, following Glass v. Freckleton, 1864, 10 Gr. 470. 234. ORIGINAL DEFENDANTS. 405 owners and the railway company for foreclosure it was held that the latter was a proper party (6). If the mortgagee seeks to obtain possession from a person who is in possession of the mortgaged land (not being a tenant under a lease made by the mortgagor subsequent to the mort- gage without the mortgagor's cpnsent (c)), such person in possession would be a proper party to an action for foreclosure or sale. With the exceptions already noted, all persons who have any interest in the ultimate (d) equity of redemption must be made defendants by writ, and they are necessary parties in this sense, that if the mortgagee (who presumably desires to to acquire an absolute title free from any equity of redemp- tion whatsoever) omits -to make defendants any persons inter- ested in the equity of redemption such persons will not be affected by the proceedings and to that extent the foreclosure will be inoperative. The persons interested in the equity of redemption may be classified as follows : (a) The mortgagor, if he still retains any interest in the equity of redemption. If a mortgagor absolutely assigns the equity of redemp- tion he thereby loses his right to redeem ; and in that case he is not a necessary party to an action for foreclosure or sale. But it is usual and advisable to make the mortgagor a party, although he may have disposed of the equity of rdemption. If (b) Scottish American Investment Co. v. Prittie, 1893, 20 O.A.R. 398. (c) A tenant in the circumstances mentioned would be a ne- cessary party, being a partial owner of the equity of redemption. See below. (d) As pointed out in chapter 14, Transferee of the Equity of Redemption, 131, a mortgagor who makes a second mortgage no longer has any equity of redemption in the first mortgage. He is however 1 interested in the ultimate equity of redemption. 406 CHAPTER XXIV. FORECLOSURE OR SALE. any question as to the validity of the mortgage should arise in the action it woud be necessary for the proper disposition of such question that the mortgagor should be before the court. The Ontario rules of practice and the forms provided by the rules for mortgage proceedings comtemplate making the mort- gagor a defendant for the purpose of enforcing against him the claim on the covenant to pay the mortgage debt (e). If a mortgagor has assigned his equity of redemption and the mortgagee makes him a party for the purpose of recover- ing on the covenant to pay the mortgage debt, the mortgagor's right to redeem revives (/). In England a bankrupt mortgagor is not a necessary or proper party to an action for foreclosure even although the trustee in bankruptcy disclaims all interest in the equity of redemption (g) ; for during his bankruptcy the mortgagor has no estate or interest in the mortgaged property even although the trustee disclaims (7i) . In Ontario an assignment for the benefit of creditors under the Assignments and Prefer- ences Act (i) vests in the assignee any equity of redemption belonging at the time of the assignment to the assignor. As, however, the personal liability of the mortgagor for the mort- gage debt continues notwithstanding the assignment for the benefit of creditors, the mortgagor is a proper party if pay- ment of the mortgage debt is sought against him. The assign- ment does not. differ in this respect from any other transfer by the mortgagor of his equity of redemption. (e) See, e.g., rule 460 and form of endorsement on the writ of summons in 232, supra. (/) Kinnaird v. Trollope, 1888, 39 Ch.D. 636. (g) Lloyd v. Lander, 1821, 5 Madd. 282; Pannell v. Hurley, 1845, 2 Coll. 241; Kerrick v. Saffery, 1835, 7 Sim. 317; Collins v. Shirley, 1830, 1 R. & My. 638. (ft) In re Mercer and Moore, 1880, 14 Ch.D. 287. (i) R.S.O. 1914, c. 134, s. 9. 234. ORIGINAL DEFENDANTS. 407 Where a derivative mortgagee brings an action to fore- close the original mortgage, the original mortgagee or his per- sonal representatives must be made parties as having a right to redeem the sub-mortgage. But if the original mortgagee's interest is wholly gone he is not a necessary party (j). And if the action relates only to the derivative mortgage the orig- inal mortgagor is not a necessary party (/c). (b) Tine present owner of the equity of redemption by assignment from tine, mortgagor or from his transferee. Where the mortgaged lands have been sold to several per- sons, the purchasers, however numerous, must be made parties to the action. The mortgagee is entitled to insist that the whole of the mortgaged estate shall be redeemed together (Z). Where a company purchased land subject to a mortgage and subsequently issued debentures charging the property, it was held that all the debenture holders must be made parties to- the action (m). It is not necessary or proper for the plaintiff in a fore- closure action to join as defendant the intermediate owner of the equity of redemption, that is to say, a person who at one time owned the equity of redemption but who has conveyed it away prior to the action (n). (/) Hobart v. Abbot, 1731, 2 P. Wms. 643. (7c) Jn re Burrell, Burrell v. Smith, 1869, L.R. 7 Eq. 399; Silver- thorn v. Glazebrook, 1899, 30 O.K. 408. (0 Peto v. Hammond, 1860, 29 Beav. 91; Buckley v. Wilson, 1861, 8 Gr. 566. (m) Griffith v. Pound, 1890, 45 Ch.D. 553. () Walker v. Dickson, 1892, 20 O.A.R. 96. The object of add- ing the intermediate purchaser in this case was to obtain a judg- ment declaring such purchaser liable personally to pay the mort- gage debt by reason of his alleged obligation to indemnify the per- son from whom he had purchased. As to such obligation, see chap- ter 14, Transferee of the Equity of Redemption, 134. 408 CHAPTER XXIV. FORECLOSURE OR SALE. (c) Tine lessee of the mortgagor. If the owner of land after making the mortgage leases the land without the authority of the mortgagee, the lease is sub- ject to the mortgage. The lessee is a purchaser of the equity of redemption pro tanto and is entitled to redeem. He is therefore a necessary party to an action for foreclosure or sale (0) . It has been held that even after final order of foreclosure a tenant for years who was not made a defendant might open up the foreclosure and redeem, unless the mortgagee would confirm his tenancy (p). It is necessary to make the tenant a party no matter how long or how short his term may be, if the mortgagee desires to affect him by the proceedings and to compel him to give up possession of the mortgaged lands. It is not unusual, how- ever, for the mortgagee to refrain from making the tenant a party and to assume the risk as to getting possession and as to the possibility of the tenant's subsequently desiring to re- deem a remote possibility unless the lease is a valuable one. If the lease was made prior to the mortgage or subsequent to the mortgage with the mortgagee's authority, the lessee's interest is paramount to the mortgage and the lessee will not be a proper or necessary party unless the mortgagee seeks some relief against him (g). (o) Tarn v. Turner, 1888, 39 Ch.D. 456. (p) Martin v. Miles, 1883, 5 O.R. 404. A tenant, like any other partial owner of the equity, who redeems; would take the land sub- ject to the claiirs of the other persons interested in the eqrity of redemption. See chapter 25, Action for Redemption, 256. (<7) For instance if the mortgagee claimed priority over the lease under the provisions of the Registry Act, R.S.O. 1914, c. 124, s. 71 (2); see chapter 8, 72. As to the right of the mortgagee to demand payment of the rent by the prior lessee, see chapter 15, Lessee of Mortgaged Land, 142. 234. ORIGINAL DEFENDANTS. 409 (d) The personal representatives of a deceased mortgag- or or owner of the equity of redemption who if alive would have been a necessary party. In Ontario under the Devolution of Estates Act the real and personal property of a deceased person devolves upon and becomes vested in his personal representative, but in the case of real property not disposed of, conveyed to or distributed among the persons beneficially entitled within three years, the estate or interest of the deceased person becomes thereafter vested in the persons beneficially entitled, subject to the regis- tration by the personal representatives of a caution or suc- cessive cautions (r). By virtue of the statute and of rule 74 (s), so long as the interest of the deceased person is vested in his personal representatives, an action for foreclosure or sale is properly constituted if it is brought against the personal representatives, and the persons beneficially- interested are not generally necessary or proper parties (#), but under rule 74 the court may at any time order any of the beneficiaries to be made parties in addition to, or in lieu of, previous parties. Before the passing of the Devolution of Estates Act, upon a mortgagor dying intestate, proceedings to foreclose must have been against the heirs at law, and if any of them were infants the invariable custom of the court was to determine whether foreclosure or sale would be more for the benefit of the infant. Since the passing of the statute a mortgage action may be maintained against the administrator, and if the heirs are adult the administrator sufficiently represents the heirs (r) For fuller statement of these provisions, see chapter 13, Persons entitled on Death of the Mortgagee, 123; cf. chapter 17, Persons entitled on Death of the Mortgagor, 162. (s) This rule is quoted in 233, supra. (t) Plenderleith v. Smith, 1905, 10 O.L.R. 188. In this case the mortgagor had died before the 4th day of May, 1891, so that the pro- vision of the statute with regard to the vesting of the estate in the persons beneficially entitled was not applicable. 410 CHAPTER XXIV. FORECLOSURE OR SALE. by virtue of rule 74, but it has been held that if there are infant heirs, they are proper parties to an action for foreclos- ure or sale and should be made defendants in the first instance. It may be that the record is complete as a matter of title with the general administrator as sole defendant, but the statute was not intended to derogate from the rights of infant bene- ficiaries and as a matter of procedure they should be made parties (u). Where, however, the mortgagor devised and be- queathed all his real and personal estate to his executors in trust, the latter were held to be the only necessary defendants to an action for foreclosure, although the widow and infant children of the deceased mortgagor were in actual possession of the mortgaged lands (v). A mortgagor having died intestate leaving a husband and infant children and the mortgagee having brought an action against them for foreclosure before the lapse of twelve months (tr), it was held that the plaintiff was entitled after the lapse of the period to a judgment for foreclosure without having a personal representative of the mortgagor before the court, no administrator having been appointed and no caution having been registered under the statute (re). It is now provided by the Devolution of Estates Act (y) as follows: 10. (1) Where there is no legal personal representative of a deceased mortgagor of freehold property it shall be sufficient for the purposes of an action for the foreclosure of the equity of redemption in, or for the sale of, such property that the person beneficially en- titled under the last will and testament, if any, of the deceased mort- (M) Keen v. Codd, 1891, 14 O.P.R. 182. (v) Emerson v. Humphries, 1892, 15 O.P.R. 84. (w) Under the Devolution of Estates Act as it then stood, real property not disposed of, etc., became vested in the persons beneficially entitled after the lapse of twelve months, subject to the registration of a caution or cautions. The period was in 1902 ex- tended to three years. (a;) Ramus v. Dow, 1893, 15 O.P.R. 219. 234. ORIGINAL DEFENDANTS. 411 gagor, or under the provisions of this Act, to such property or the proceeds thereof be made defendant to such action, and it shall not be necessary that a legal personal representative of the deceased mortgagor be appointed or be made a defendant thereto unless it shall be otherwise ordered by the Court in which the action is brought or by a Judge thereof; but if during the pendency of such action, the equity of redemption devolves upon and becomes vested in a legal personal representative of the mortgagor he shall be made a party to the action. (2) In subsection 1 the word "mortgagor" shall include the as- signee of a mortgagor and any person entitled to or interested in the equity of redemption. An action for foreclosure was begun in 1898, and the usual judgment was entered on the 30th of January, 1899. One of the mortgagors defendants died on the 20th of June, 1899, an infant, unmarried and. intestate. On the 2nd of May, 1900, a final order of foreclosure was granted, no notice being taken of the infant 's death, and he and not his personal repre- sentatives or those claiming under him being declared to be foreclosed. It was held that the final order was irregular and was not binding on the infant's mother who was not a party to the action, and in whom an undivided interest in her son's estate became vested at the expiration of a year from his death, and that she was entitled to redeem and to be added as a defendant, upon her own application. An order was made adding her as a defendant, and directing that the action be carried on between the plaintiff and the continuing defend- ants and new defendant, and that it should stand in the same plight and condition in which it was at the time of the infant 's death. The effect was to require a new account to be taken and a new day to be fixed for redemption, of which all the defendants were entitled to avail themselves (z)- (y) R.S.O. 1914, c. 119, s. 10. The original amendment passed in 1906 did not in terms apply to an action for sale, but the statute was changed in this respect by 10 E. 7, c. 56, s. 10. (z) Kennedy v. Foxwell, 1906, 11 O.L.R. 389. 412 CHAPTER XXIV. FORECLOSURE OR SALE. A trustee will not sufficiently represent the cestivis que trust as defendant in a foreclosure action unless he has funds in hand sufficient to enable him to redeem; for all persons must be brought before the court who are interested in the equity of redemption and who may be able and willing to redeem (a). If a trustee becomes bankrupt he cannot prop- erly represent his beneficiaries in a foreclosure action, and the beneficiaries should be made parties (&), but if a trustee unnecessarily makes the cestuis que trust parties he may be ordered to pay their costs (c). (e) The wife or the husband of the mortgagor. In Ontario prior to the llth March, 1879, a widow had no claim to dower in an equity of redemption unless her husband died beneficially entitled (d), and she was not a necessary or proper party to an action for foreclosure or sale, whether the land was already subject to mortgage when her husband acquired it or whether she had joined to bar her dower in a mortgage executed by him (e}. Since that date a widow is not entitled to dower in an equity of redemption acquired by her husband and disposed of by him in his lifetime, and she is therefore not a proper or necessary party to an action for foreclosure or sale (/) . If how- ever her husband acquires the legal estate and she joins to bar dower in a mortgage executed by him since that date, she is (a) Goldsmid v. Stonehewer, 1852, 9 Hare, App. xxxviii; Mills v. Jennings, 1880, 13 Ch.D. 639, 6 App. Gas. 698. (6) Francis v. Harrison, 1889, 43 Ch.D. 183. (c) In re Cooper, Cooper v. Vesey, 1882, 20 Ch.D. 611, C.A. (d) See chapter 18, Dower and Curtesy in Mortgaged Land, 172. Prior to 1834 a widow had no claim to dower in an equity of redemption even if her husband died beneficially entitled. (e) Moffatt v. Thomson, 1851, 3 Gr. Ill; Davidson v. Boyes, 1873, 6 O.P.R. 27. (/) Parker v. Willett, 1889, 22 N.S.R. 83. 234. ORIGINAL DEFENDANTS. 413 entitled to dower in the equity of redemption, and he cannot transfer the equity of redemption free from dower (g). Unless and until her husband dies entitled to the equity of redemp- tion, she has, however, merely an inchoate right to dower, and, strictly speaking, she is not a necessary party to an action for foreclosure or sale, if the proceedings are brought to a conclus- ion in her husband's lifetime (h). But it has been held that where a wife applies after judgment and report and before final order of foreclosure she is entitled to be added as a party and to redeem (i). The bar of dower affects the right to dower only so far as is necessary for the protection of the mortgagee, and to the extent that the value of the land repre- sents a surplus over and above the mortgagee's claim, the wife's claim to dower attaches (j). In the case of a sale the amount of the surplus, if any, is definitely ascertained, but in the case of foreclosure simply the existence or amount of the surplus cannot be ascertained. It has therefore been held that proper practice requires that she should be a party to an ac- tion for foreclosure in order that she may either redeem or protect her interests by asking for a sale ; if she does neither there would be no question as to her dower being effectually extinguished (k). In view of the uncertain result of the de- cisions it is safer to make her a defendant (I). (9) See chapter 18, 173. (ft) Casner v. Haight, 1884, 6 O.K. 451. In this case the wife brought an action for redemption after the final order of foreclosure against her husband, and on demurrer it was held that she was not a necessary party to the foreclosure action and was not entitled to redeem. (i) Blong v. Fitzgerald, 1893, 15 O.P.R. 467. (/) The amount of dower in the surplus is calculated upon the whole value of the land. See chapter 18, 174. (k) Ayerst v. McClean, 1890, 14 O.P.R. 15. (0 Holmested, Ontario Judicature Act, 4th ed., 1086; Standard Realty Co. v. Nicholson, 1911, 24 O.L..R. 46, at p. 51. .414 CHAPTER XXIV. FORECLOSURE OR SALE. During the existence of a mortgage in which the mort- gagor's wife has joined to bar dower, the wife's sole remedy is to redeem the mortgage, and she is not entitled to assert any claim for dower against the holder of the mortgage (m). When the mortgagor assigns his equity of redemption the wife of the person to whom the assignment is made is not a proper party to an action by the mortgagee for foreclosure (ri), but it would seem that if the owner of the equity of re- demption should die after judgment but before final order of foreclosure, his wife would have a right to redeem. In that case she is a proper party to the action and a new day should be named to allow her to redeem ( o ) . It has been held that if a married woman is entitled to an equity of redemption in land, there is such seisin in her as will entitle her husband to a tenancy by the curtesy upon her death (p), provided the other requisites for such tenancy exist (q). A married woman may, however, defeat her hus- band's estate by the curtesy by conveyance inter vivos or by her will (r), and therefore it would seem that her husband is not a necessary party to an action for foreclosure or sale of land mortgaged by her if the proceedings are brought to a conclusion so as to extinguish the equity of redemption in her lifetime. (f ) A surety for the mortgagor. A mere surety by covenant who has paid nothing is not a necessary party to an action for foreclosure, but a surety who (m) Thompson v. Thompson, 1904, 37 N.S.R. 242. () Monk v. Benjamin, 1890, 13 O.P.R. 356. (o) Monk v. Benjamin, supra. (p) Casborne v. Scarfe, 1737, 1 Atk. 603, 2 W. & T. L.C. Eq. 6. As to the dictum in this case that an equity of redemption is an estate in the land, see chapter 3, Legal Mortgage in Equity, 28. (q) See chapter 18, Dower and Curtesy in Mortgaged Land, 176. (r) See the statutes quoted in 176, supra. 234. ORIGINAL DEFENDANTS. 415 has joined as co-mortgagor with the principal debtor is a neces- sary party (s). A wife who joins as co-mortgagor, and not merely to bar dower, in a mortgage by her husband for a debt of his, is a surety and entitled to redeem (t). Where there is a surety for the payment of the mortagge debt in default of payment by the mortgagor, it is desirable to join the surety as a defendant in the action against the mortgagor, because when judgment is recovered against the principal the right of action on the covenant is merged in the judgment and subsequent accruing interest may not be other- wise recoverable against the surety (it). Where a surety by the terms of his agreement has become liable for the deficiency on a mortgage, the mortgagee cannot require him to pay until the security has been realized and the deficiency ascertained (v). 235. Pleadings. Usually in an action for foreclosure or sale there is no dis- pute as to the validity of the mortgage or as to any other matter which will necessitate the delivery of pleadings, and when the parties have been served, and appearance has been entered or the time for appearance has expired, a judgment will be entered on praecipe or on motion with or without a reference as the case may be. It is unnecessary here to discuss the general rules of plead- ing. If there are controverted questions arising between the parties, other than mere matters of accounting, the issues will (s) Gee v. Liddell, [1913] 2 Ch. 62, at p. 73. (O Standard Realty Co. v. Nicholson, 1911, 24 O.L.R. 46, at p. 52. (it) Faber v. Earl of Lathom, 1897, 77 L.T. 168. It was held in Manitoba that a surety for payment of a mortgage is not a proper party to a foreclosure suit and that no personal order can be made against him: Real Estate Loan Co. v. Molesworth, 1886, 3 M.R. 116. (v) Teeter v. St. John, 1863, 10 Gr. 85. 416 CHAPTER XXIV. FORECLOSURE OR SALE. have to be defined by pleadings or otherwise and the action will have to be tried according to the ordinary rules of prac- tice. Judgment will then be entered according to the result of the trial. If the decision is in favour of the mortgagee, the action may then .proceed according to the usual practice in mortgage actions as hereinafter outlined. Only some matters of pleading need be mentioned here which are of special in- terest in mortgage actions. It is provided in Ontario by rule 109, as follows : 109. (1) The plaintiff shall state the nature of his claim and the relief sought in a pleading to be called the statement of claim, and may therein alter, modify, or extend his claim as endorsed upon the writ. (2) When a defendant has not appeared and the statement of claim alters, modifies, or extends the relief claimed, the plaintiff shall not be entitled to judgment on default of defence- unless the state- ment of claim is served personally or in pursuance of an order for substitutional service. The plaintiff will not be entitled to any relief in the action which he has not claimed in the writ of summons or in the statement of claim. Thus where a mortgagee by the writ of summons .asked for foreclosure, and by his statement of claim asked for an account, payment of the amount found due and, in default of payment, foreclosure or sale and possession, it was held that he was not entitled to judgment for immediate pos- session, even though the defendant had not entered an ap- pearance to the writ, and did not deliver a statement of de- fence or appear on the motion for judgment (w). Under the first paragraph of rule 109 the plaintiff may alter, modify or extend his claim in the statement of claim, as, for instance, by adding a claim for possession to the claim for an injunction to restrain waste contained in the writ of summons (x}, but, in accordance with the principle now ex- (w) Faithfull v. Woodley, 1889, 43 Ch.D. 287. (x) Smythe v. Martin, 1898, 18 O.P.R. 227. 235. PLEADINGS. 417 pressly stated in the second paragraph of the rule, it has been .held that if the plaintiff endorses the writ with a claim for an account, foreclosure or sale and the appointment of a re- ceiver, and the defendant does not appear, the plaintiff does not become entitled to an immediate judgment for personal payment by claiming this additional relief in the statement of claim duly filed but not served on the defendant (j/)-. It is further provided by rule 143 as follows : 143. A defendant to an action or counter-claim shall raise all matters which show the action or counter-claim not to be maintain- able, or that the transaction is either void or voidable in point of law, and all such grounds of defence as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings, as for instance, fraud, Statute of Limitations, release, payment, performance, facts show- ing illegality either by statute or common law, or Statute of Frauds. Questions such as the invalidity of the- mortgage deed should be raised by the pleadings and adjudicated upon by the court on the hearing of the cause. Contentions of this kind cannot be raised in the master's office (z). Under the English practice the mortgagor should plead in his statement of defence any special matter affecting the account between himself and the mortgagee and should raise the matter at the trial, otherwise such special circumstances cannot afterwards be raised on taking the account (a). If a mortgagor relies upon the defence that the mortgagee's right of action has been barred by the .Statute of Limitations, .(2/) Gee v. Bell, 1887, 35 Ch.D. 160. (z) Bickford v. Grand Junction Railway Co., 1877, 1 Can. S.C.R. 696 at p. 725. See McDougall v. Lindsay Paper Mill Co., 1884, 10 O.P.R. 247; Wiley v. Ledyard, 1883, 10 O.P.R. 182; Rowland v. Burwell, 1888, 12 O.P.R. 607. (a) Sanguinetti v. Stuckey's Banking Co., [1896] 1 Ch. 502. In Ontario, see rule 410, quoted in chapter 27, Accounting between Mort- gagor and Mortgagee. 418 CHAPTER XXIV. FORECLOSURE OR SALE. such defence must be expressly pleaded (&), but it is unneces- sary to plead the Statuteof Limitations in order to prevent the recovery of more than six years' arrears of interest in taking the accounts in the master 's office ; the filing of a disputing no- tice is sufficient (c). Where the plaintiff company took a mortgage from a trustee and registered it without notice of any equitable right of the cestui que trust, the court considered it doubtful whether it was necessary for the plaintiff to plead the provis- ion of the Kegistry Act in order to take advantage of it (d). The defendants in a mortgage action filed a counterclaim claiming damages by reason of false and depreciatory state- ments with regard to the value of the mortgaged premises ; an order was made striking out the counter-claim on the ground of inexpediency and inconvenience in trying the two causes of action together (e). 236. Interlocutory judgment. A mortgage, notwithstanding its legal form as a condi- tional conveyance, is regarded in equity as a security merely, subject to an equitable right to redeem after the legal or con- tractual right to redeem has been forfeited (/). In accord- ance with equitable principles the court will not usually de- cree immediate foreclosure in a mortgage action, but will al- low t-he owner of the equity of redemption a period of six months before foreclosing him (g). In the ordinary case in which there is no dispute as to the validity of the mortgage or other preliminary question re- (&) Wright v. Morgan, 1877, 1 O.A.R. 613; Cattanach v. Urqu- iart, 1873, 6 O.P.R. 28. (c) Wright v. Morgan, 1877, 1 O.A.R. 613. < either in person or by your solicitor, to prove your claims. Now you are hereby required to take notice: 1st. That if you wish to apply to discharge my order making you a party, or to add to, vary, or set aside the judgment, you must do so within ten days after the service hereof; and if you fail to do so, you will be bound by the judgment, and the further proceedings in this cause as if you were originally made a party to the action. 2nd. That if you fail to attend at the time and place appointed, you will be treated as disclaiming all interest in the land in question, and it will be 238. ADDING PARTIES AFTER JUDGMENT. 427 dealt with as if you had no claim thereon, and your claim will be in fact foreclosed. Dated this day of A.D. 19 W. L., Master. The enquiry is confined to subsequent encumbrancers, etc. As already pointed out, prior encumbrancers usually are not made parties at all and are not affected by the proceedings, but if some relief is sought against them, they must be made parties by writ (2). The notice to subsequent encumbrancers added in the mas- ter's office must be served in the same manner as a writ of summons may be served. Within three days after service it must be endorsed by the person who served it with a mem- orandum of the day of the month and the day of the week of service, and the day on which this endorsement was made must be stated in the affidavit of service (a). A person added as a party under rule 470 who contends that he should not have been made a party should apply under rule 471 within ten days after service. If a party so added does not move against the order and thus submits to it, he can- not in the master's office attack the plaintiff's mortgage as being fraudulent or ultra vires (&). It is, however, probable that he would be able to get relief by way of appeal from the master's report (&&), even though he has failed to move under rule 471> and it is clear that a party added in the master's office can get such relief if he is not an encumbrancer, for in- stance, if he is a tenant of the mortgagor who should be made a party by writ, if at all (c). (z) See 234, supra. (a) See rules 17, 3 (j). (5) McDougall v. Lindsay Paper Mill Co., 1884, 10 O.P.R. 247; McDermott v. Bielschowsky, 1912, 22 M.R. 319, 3 D.L.R. 319. (&b) See 240, infra. (c) McLaughlin v. Stewart, 1901, 1 O.L.R. 295; Cowan v. Allan, 1896, 26 Can. S.C.R. 292. 428 CHAPTER XXIV. FORECLOSURE OR SALE. There is no right and no necessity on the part of subse- quent encumbrancers added in the master 's office to move to vary the judgment for the purpose of questioning or reduc- ing the amount owing on the mortgage as between the mort- gagee and the mortgagor, it being open to the added parties to raise the question of value in the master's office (d) . Subsequent mortgagees, execution creditors (e) and mech- anics lien holders (/) should be added in the master's office under rule 470. The registrar's and sheriff's certificates brought into the master's office under rule 469 will show what subsequent encumbrances or liens have been registered, or what executions have been placed in the sheriff's hands. It is sufficient that the certificate should be brought down to the day next following the issue of the writ of summons, but if the master has notice of a subsequent encumbrance or lien, though unregistered, the encumbrancer or lien holder should be made a party (). If a person entitled to redeem makes a proper tender of the amount due, the mortgagee will not be entitled to recover in- terest accruing or costs incurred thereafter (w), but the per- son liable to pay must keep the money ready to pay over on demand to the mortgagee (x). A ^tender to be good must be made by a person entitled to redeem; tender by a stranger is not good, for as against a stranger the mortgagee's estate is absolute. It may be made by the solicitor or agent of the person entitled to redeem (y). A tender may be made to the mortgagee, or to any other person entitled to receive the money and reconvey the estate, (t) Rourke v. Robinson, supra, following Cotterell v. Stratton, 1872, L.R. 8 Ch. 295, at p. 302. It has been held in New Brunswick that a tender by the mortgagor of the amount due on a mortgage accompanied by a demand for a discharge of the mortgage and a release of the debt is conditional, and does not deprive the mort- gagee of his costs in a redemption suit. McKenzie v. McLeod, 1909, 39 N.B.R. 230, 4 N.B. Eq. 72. (u) Webb v. Crosse, [1912] 1 Ch. 323, following Manning v. Burges, 1663, 1 Gas. in Ch. 29. (v) Webb v. Crosse, supra, following Wiltshire v. Smith, 1744, 3 Atk. 89. (w) Knapp v. Bower, 1871, 17 Gr. 695; Bishop v. Church, 1751, 2 Ves. Sen. 370; Lord Midleton v. Eliot, 1847, 15 Sim. 531. (x) Kinnaird v. Trollope, 1889, 42 Ch.D. 610; Bank of New South Wales v. O'Connor, 1889, 14 App. Gas. 273; Knapp v. Bower, 1871, 17 Gr. 695; Edmondson v. Copland, [1911] 2 Ch. 301. (y) Ward v. Carttar, 1865, L.R. 1 Eq. 29. - 498 CHAPTER XXV. ACTION FOR REDEMPTION. as for example, a trustee of the mortgagee, his assignee, or his executors or administrators (2). A tender to a solicitor or other agent of the mortgagee will not be good unless he has authority to receive the mortgage money (a). If a place is appointed for payment the tender must be made at that place. If the mortgagee has demanded payment or if the mortgagor is willing to pay six months' interest in lieu of notice, a tender may be made at any time, but if the money is payable at a time certain by the mortgage contract, or at the expiration of a six months' notice after default, the tender must be made on the very day (&). In order to constitute a good tender there must be actual production and offer of the money, unless waived by the mort- gagee. Actual production may be dispensed with if the cred- itor refuses to accept the money when the debtor offers to produce it, but before he has actually produced it, but the debtor must have the money ready to pay at the time when he offers to do so (c). A tender made by letter without actually enclosing the money is not good (d). The exact amount must be tendered; a tender of a larger sum requiring change is not a good ten- der (e), and the whole amount due must be tendered; the mortgagor cannot tender a less sum and claim a set-off for the remainder (/). (z) Cliff v. Wadsworth, 1843, 2 Y. & C.C.C. 598. (a) Withington v. Tate, 1869, L.R. 4 Ch. 288. (6) Briggs v. Calverley, 1800, 8 T.R. 629. In Ontario, see how- ever, s. 16 of the Mortgages Act, quoted in 253, supra. (c) Lake v. Biggar, 1860, 11 U.C.C.P. 170; Thomson v. Hamilton, 1835, 5 U.C.O.S. Ill; Milburn v. Milburn, 1847, 4 U.C.R. 179; Pol- glass v. Oliver, 1831, 2 Cr. & J. 15; Harding v. Davies, 1825, 2 C. & P. 77; Douglas v. Patrick, 1790, 3 T.R. 683; Kraus v. Arnold, 1822, 7 Moo. 59; Reynolds v. Allan, 1852, 10 U.C.R. 350; Long v. Long, 1870, 17 Gr. 251; Middleton v. Scott, 1902, 4 O.L.R. 459. (d) Powney v. Blomberg, 1844, 14 Sim. 179. (e) Cottrell v. Finney, 1874, L.R. 9 Ch. 541. (/) Searles v. Sadgrave, 1855, 5 E. & B. 639. 254. TENDER. 499 , A tender to be valid must not be subject to any condition (g) other than the requirement that a receipt should be given (7i) or that the title deeds and a reconveyance or discharge should be handed over (i). A tender of the amount claimed under protest and reserv- ing the right of the mortgagor to dispute the amount due is valid (j). A tender of mortgage money, accompanied by a statement that the person tendering did not consider that the amount tendered was due and that the person to whom the tender was made would thereafter be compelled to repay the excess, was held not to have been invalidated by the statement, but it was held in the same case that a tender to the holder of a mortgage, who claimed a larger sum, with a condition that the mortgage, on the sum tendered being accepted, should be .given up was bad as being conditional (fc). If the mortgagee refuses to accept the moneys when a proper tender is made, and to execute a discharge or recon- veyance, he may be compelled to do so and may be ordered to pay the costs of an action for that purpose (I). If a sale is made by the mortgagee under the power of sale in the mortgage, after a proper tender has been made, it will be set aside if the purchaser had notice of the tender but it may be enlarged if the fail- ure to pay the mortgage money within the time appointed was due to mistake. If the application to extend the time is not made until after final order, that order must be vacated before the time is extended (I). A final decree dismissing an action for the redemption of a legal mortgage operates as a decree for foreclosure (m). But the dismissal of a redemption action for want of prosecu- tion has not the effect of a decree for foreclosure, and the mort- gagor may bring another action for redemption (ri). The dis- missal of an action for the redemption of an equitable mort- gage by deposit of title deeds is not equivalent to a foreclosure, because in that case the judgment of foreclosure would direct the execution of a conveyance and the mere dismissal of the action to redeem would not have that effect (o). Where a second mortgagee brings action to redeem the first mortgagee and to foreclose the mortgagor, and the second mortgagee fails to redeem, the action will be dismissed as against both the sec- ond mortgagee and the mortgagor with costs (p). Rule 488 is as follows : 488. In a redemption action where the plaintiff is declared fore- closed, directions may be given either by the final order foreclosing the plaintiff, or by subsequent orders, that all necessary inquiries be made, accounts taken and proceedings had for redemption or fore- closure, or redemption or sale, as against any subsequent encum- brancers, or for the adjustment of the relative rights and liabilities of the original defendants as among themselves. (k) Faulkner v. Bolton, 1835, 7 Sim. 319. (0 Collinson v. Jeffery, [189S] 1 Ch. 644. As to extension of time for redemption in an action for foreclosure or sale, see chapter 24, 244. (m) Cholmley v. Countess Dowager of Oxford, 1741, 2 Atk. 267; Bishop of Winchester v. Paine, 1805, 11 Ves. 194; Inman v. Wearing,. 1850, 3 DeG. & S. 729; Cornwall v. Henriod, 1866, 12 Gr. 338. (n) Hansard v. Hardy, 1812, 18 Ves. 455. (o) Marshall v. Shrewsbury, 1875, L.R. 10 Ch. 250. (p) Hallett-v. Furze, 1885, 31 Ch.D. 312. 259. PROCEEDINGS IN MASTER'S OFFICE. .513 Where a second mortgagee sues for redemption and makes default in paying at the time appointed either the mortgagor or the first mortgagee has the right to have a day appointed for redemption of the first mortgage by the mortgagor. If neither avails himself of this right and the first mortgagee ob- tains an order simply dismissing the second mortgagee's ac- tion, he will not be deprived of his costs of a subsequent action to foreclose the first mortgage (q). In an action for redemption the plaintiff is not entitled, without the mortgagee 's consent, to a sale, but if the mortgagee under rule 481 brings in subsequent encumbrancers for the purpose of foreclosing them, it would seem that they have the ordinary right of defendants in a foreclosure action and may claim a sale on the usual terms (r). A subsequent encumbrancer bringing action against a prior mortgagee is not entitled to a sale (s), unless the prior mortgagee consents or does not object (#). A subsequent en- cumbrancer may, however, have judgment for sale if the prior mortgagee consents thereto or does not object ; but in that case the proceeds of the sale will be applied in satisfaction of the claims of the encumbrancers according to their priorities, and the subsequent encumbrancer will not be entitled to any prior- ity in respect of his costs even if the fund prove insufficient (q) McKinnon v. Anderson, 1871, 18 Gr. 684. As to subsequent accounts and appointment of a new day for redemption, see chapter 24, Action for Foreclosure or Sale, 241. (r) Holmested, Ontario Judicature Act, 4th ed., p. 1071; see chapter 24, Action for Foreclosure or Sale, 245, and rule 462 there quoted. (s) McDougall v. Campbell, 1881, 6 Can. S.C.R. 502. (*) Grange v. Barber, 1868, 2 Chy. Ch. (Ont). 189. (M) Grange v. Barber, supra. CHAPTER XXVI. LIMITATION OF ACTIONS. A. Personal Actions for Payment. 261. Covenant, debt and account, p. 515. 262. Disability or absence, p. 517.' 263. Acknowledgment or part payment, p. 518. B. Actions to recover Money out of Land. 264. Limitation as to principal, p. 522. 265. Acknowledgment or part payment, p. 525. 266. Limitation as to arrears of interest, p. 527. 267. Acknowledgment, p. 531. C. Actions for Possession and Foreclosure or Sale. 268. Limitation prior to 1833, p. 532. 269. The Eeal Property Limitation Acts, p. 534. 270. Action to recover land, p. 535. t 271. When the right is deemed to accrue, p. 539. 272. Acknowledgment, p. 545. 273. Part payment, p. 548. 274. Effect of bringing action, p. 550. 275. Disabilities in case of action to recover land, p. 553. 276. Extinguishment of right and title, p. 555. D. Actions for Redemption. 277. Limitation if mortgagee in possession, p. 557. 278. Time not extended by reason of disability, p. 559. 279. Nature of possession of mortgagee, p. 561. 280. Possession of part of mortgaged land, p. 564. 281. Acknowledgment of title by mortgagee, p. 565. E. The Land Titles Acts. 282. Possession adverse to registered title, p. 568. 261. COVENANT DEBT AND ACCOUNT. . 515 A. PERSONAL ACTIONS FOB PAYMENT. 261. Covenant, debt and account. If there is a covenant for payment the limitation of action upon it is governed in Ontario by the Limitations Act, RJ3.0. 1914, c. 75, s. 49, as follows : 49. (1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: (a) An action for rent, upon an indenture of demise; (b) An action upon a bond, or other specialty, except upon a covenant contained in an indenture of mortgage made on or after the 1st day of July, 1894; (c) An action upon a recognizance; within twenty years after the cause of action arose. (k) An action upon a covenant contained in an indenture of mortgage, made on or after the 1st day of July, 1894, with- in ten years after the cause of action arose. Clause (k) and the corresponding exception in clause (6) were introduced in Ontario by the statute 56 V. c. 17, but in other respects the foregoing provisions are derived from the English statute 3 & 4 W. 4, c. 42, s. 3, adopted in Upper Can- ada by the statute 7 W. 4, c. 3, s. 3. The period of limitiation of actions to recover money out of the land is ten years (a) and only six years arrears of in- terest may be so recovered (&). The section now in question is confined to the personal action on the covenant for payment. It has been held, in the case of mortgages made before the 1st of July, 1894, that the action on the covenant for payment is not barred until after twenty years although the right to resort to the land may have been already barred, and similarly that in an action on the covenant arrears of interest up to twenty years may be recovered, although only six years ar- rears may be recovered out of the land (c). It follows that (a) R.S.O. 1914, c. 75, s. 24. See 264, infra. (6) R.S.O. 1914, c. 75, s. 18. See 266, infra. (c) Airey v. Mitchell, 1874, 21 Gr. 510, at p. 512; McDonald v. Elliott, 1886, 12 O.R. 98; following Allan v. McTavish, 1878, 2 O.A.R. 516 CHAPTER XXVI. LIMITATION OF ACTIONS. in the case of mortgages made on or afte.r the 1st day of July, 1894, a personal judgment on the covenant may be recovered for ten years arrears of interest, although only six years ar- rears may be recovered out of the land. In Ontario any charge or transfer of land registered under the Land Titles Act may be duly made by an instrument not under seal, and if so made the instrument and every agreement, stipulation and condi- tion therein shall have the same effect for all purposes as if it were made under seal (d). A contract to pay the mortgage money expressed or implied in such charge is therefore a ' ' cov- enant contained in an indenture of mortgage" within the meaning of s. 49 of the Limitations Act (e). An action for debt grounded upon any lending or contract without specialty must be brought within six years after the cause of action arose (/). Therefore if a mortgage contains no covenant to pay and the mortgagor is nevertheless person- ally liable to the mortgagee (g}, the mortgagee is entitled to recover from the mortgagor only six years arrears of interest, and the personal remedy by action to recover either principal or interest will be barred in six years (7i). The limitation of actions for account is governed in On- tario by R.S.O. 1914, c. 75, s. 50, as follows : 50. Every action of account, or for not accounting, or for such accounts as concern the trade of merchandise between merchant and merchant, their factors and servants, shall be commenced within six years after the cause of action arose; and no claim in respect of a 278, in preference to Sutton v. Sutton, 1882, 22 Ch.D. 511, 16 R.C. 298. See 264, below. (d) R.S.O. 1914, c. 126, s. 102. (e) Beatty v. Bailey, 1912, 26 O.L.R. 145, 3 D.L.R. 831. (/) R.S.O. 1914, c. 75, s. 49 U) (g); 21 Jac. 1, c. 16, s. 3 (1623), (g) As to the personal liability of the mortgagor in the absence of a covenant to pay, see chapter 23, Action on the Covenant, 221. (h) The period is still governed in England by 21 Jac. 1, c. 16, and it has not been enlarged by the Real Property Limitation Acts. Barnes v. Glenton, [1899] 1 Q.B. 885. 261. COVENANT DEBT AND ACCOUNT. 517 matter which arose more than six years before the commencement of the action, shall be enforceable by action by reason only of some other matter of claim comprised in the same account, having arisen within six years next before the commencement of the action. This section is derived from the English Mercantile Law Amendment Act, 1856, 19 & 20 V. c. 97, s. 9 (i). If a mortgagee sells under a power of sale according to the terms of which he is declared to be a trustee of the surplus, the statute of limitations does not apply to an action by the mortgagee to make the mortgagee account for the surplus (j), but if by the terms of the mortgage the mortgagee is not ex- pressly declared to be a trustee of the surplus, he is merely a constructive trustee and the period of limitation is six years (fc). 262. Disability or absence, Disability on the part of the plaintiff, or absence from On- tario on the part of the defendant, is provided for by R.S.O. 1914, c. 75, ss. 51 and 52, as follows: 51. Where a person entitled to bring any action mentioned in either of the next two preceding sections is at the time the cause of action accrues an infant, idiot, lunatic, or of unsound mind, the period within which such action should be brought shall be reckoned from the date when such person became of full age or of sound mind. 52. If a person against whom any cause of action mentioned in sections 49 and 50 accrues is at such time out of Ontario, the person entitled to the cause of action may bring the action within such times .as are before limited after the return of the absent person to Ontario. (i) See Friend v. Young, [1897] 2 Ch. 421, 16 R.C. 193. (/) Biggs v. Freehold Loan and Savings Co., 1899, 26 O.A.R. 232, reversed on another point, 1901, 31 Can. S.C.R. 136; In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284; In re Bell, Lake v. Bell, 1886, 34 Ch.D. 462; Thorne v. Heard, [1895] A.C. 495. As to the ap- plication of the Limitations Act to an "express trust," see also 264, infra. (fc) Locking v. Parker, 1872, L.R. 8 Ch. 30; Banner v. Berridge, 1881, 18 Ch.D. 254. 518 CHAPTER XXVI. LIMITATION OF ACTIONS. These two sections are derived from the English statutes. 21 Jac. 1, c. 16, s. 7, and 4 & 5 Anne, c. 3, (or c. 16 in Ruff- head's edition), s. 19, respectively. See R.S.O. 1897, c. 324, ss. 39 and 40. Under the statute of James time was extended also in the case of the plaintiff being a f&nie covert, imprison- ed or beyond the seas. The case of one joint debtor or contractor being out of Ontario, is provided for by R.S.O. 1914, c. 75, s. 53, as follows : 53. (1) Where a person has any such cause of action against joint debtors or joint contractors he shall not be entitled to any time within which to commence such action against any one of them who was within Ontario at the time the cause of action accrued, by reason only that some other of them was, at the time the cause of action accrued, out of Ontario. (2) The person having such cause of action shall not be barred, from commencing an action against a joint debtor or joint contrac- tor who was out of Ontario at the time the cause of action accrued, after his return to Ontario, by reason only that judgment has been already recovered against a joint debtor or joint contractor who was at such time within Ontario. 263. Acknowledgment or part payment. Provision is made as to the effect of an acknowledgment or part payment by R.S.O. 1914, c. 75, s. 54 to 59, as follows: 54. Where an acknowldgment in writing, signed by the prin- cipal party or his agent, is made by a person liable upon an inden- ture, specialty or recognizance, or where an acknowledgment is made by such person by part payment, or part satisfaction, on account of any principal or interest due on such indenture, specialty or recog- nizance, the person entitled may bring an action for the money re- maining unpaid and so acknowledged to be due, within twenty years, or, in the cases mentioned in clause (fc) of subsection 1 of section 49, within ten years after such acknowledgment in writing, or part payment, or part satisfaction, or where the person entitled is, at the time of the acknowledgment under disability as aforesaid, or the person making the acknowledgment is, at the time of making the same, out of Ontario, then within twenty years, or in the cases aforesaid within ten years, after the disability has ceased, or the person has returned, as the case may be. 55. (1) No acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby 263. ACKNOWLEDGMENT OR PART PAYMENT. 519 to take out of the operation of this Part (I), any case falling within its provisions respecting actions (a) Of account and upon the case, (b) On simple contract or of debt grounded upon any lending or contract without specialty, and (c) Of debt for arrears of rent, or to deprive any party of the benefit thereof, unless such acknowledg- ment or promise is made or contained by or in some writing signed by the party chargeable thereby, or by his agent duly authorized to make such acknowledgment or promise. (2) Nothing in this section shall alter, take away or lessen the effect of any payment of any principal or interest by any person. 56. Where there are two or more joint debtors or joint contrac- tors, or joint obligors, or covenantors, or executors or adminis- trators of any debtor or contractor, no such joint debtor, joint con- tractor, joint obligor or covenantor or executor or administrator shall lose the benefit of this Act so as to be chargeable in respect or by reason only of any written acknowledgment or promise made and signed, or by reason of any payment of any principal or interest made, by any other or others of them. 57. In actions commenced against two or more such joint debt- ors, joint contractors, executors or administrators, if it appears at the trial or otherwise that the plaintiff, though barred by this Act, as to one or more of such joint debtors, joint contractors, or exe- cutors or administrators is nevertheless entitled to recover against any other or others of the defendants by virtue of a new acknowl- edgment, promise or payment, judgment shall be given for the plain- tiff as to the defendant or defendants against whom he recovers, and for the other defendant or defendants against the plaintiff. 58. No endorsement or memorandum of any payment written T made upon any promissory note, bill of exchange, or other writing, by or on behalf of the person to whom the payment has been made, shall be deemed sufficient proof of the payment, so as to take the case out of the operation of this Act. 59. This Part shall apply to the case of any claim of the nature hereinbefore mentioned, alleged by way of set-off on the part of any defendant. S. 54 relates to action upon an indenture, specialty or re- cognizance. The special provision as to clause (k) of sub-s. 1 of s. 49 refers to an amendment made in the Ontario statute (I) This "part" includes ss. 49 to 59 of the statute. 520 CHAPTER XXVI. LIMITATION OF ACTIONS. in 1894 (m). In other respects s. 54 is derived from the Eng- lish statute 3 & 4 W. 4, c. 42, s. 5. .S. 55, relating to actions of account, on simple contract or of debt without specialty, is derived from the English statute 9 G. 4, c. 14, s. 1. S. 56 is derived from the English statute 19 & 20 V. c. 97, s. 14. The acknowledgment of a simple contract debt to take the case out of the statute 21 Jac. 1, c. 16, must be an acknowledg- ment from which the law will imply a promise to pay (so as to give rise to a new cause of action), and part payment, to have the same effect, must be such a payment that a like prom- ise to pay the remainder may be implied and must be a pay- ment in discharge pro tanto of the debt (n). The acknowledg- ment by writing or part payment under s. 54, supra, however need not be such that a promise to pay is implied, and the acknowledgment could not operate as giving rise to a new cause of action, because the action in wMch the acknowledg- ment is to be operative must be maintained on the original obligation, and on that only (a). An acknowledgment of a simple contract debt must be made to the creditor or his agent, but it has been held that an acknowledgment of indebtedness made in a letter written after the creditor 's death to the person who is entitled to administer the creditor's estate, and w r ho after the receipt of the letter is appointed administrator, is sufficient (p). In the case of a specialty debt an acknowledgment to a third party is suffi- cient (q). (m) .See 261, supra. (n) Tanner v. Smart, 1827, 6 B. & C. 603, 16 R.C. 160; Stam- ford, Spalding and Boston Banking Co. v. Smith, [1892] 1 Q.B. 765, 16 R.C. 165. (o) Roddam v. Morley, 1857, 1 DeG. & J. 1, 16 R.C. 273. (p) Robertson v. Burrill, 1895, 22 O.A.R. 356. (q) Goodman v. Boyes, 1890, 17 O.A.R. 528. 263. ACKNOWLEDGMENT OR PART PAYMENT. 521 S. 54 does not expressly require the payment to be made by the person liable or his agent. If such a qualification of the statute is to be implied, the assignee of the equity of redemp- tion who assumes the mortgage is sufficiently an agent of the mortgagor for that purpose (r). The payment of interest on a specialty debt by a tenant for life is sufficient to create a new starting point under the statute as against the remaindermen (s). The same principle applies in the case of payment of interest on a simple contract debt (t). The receipt of rents by a mortgagee in possession is not a payment by the mortgagor or any person on his behalf so as to keep alive the right of action on the covenant, unless by agreement between the parties rents are to be set off against money due on the mortgage (u). A written acknowledgment or a payment by one of two or more joint debtors or joint covenantors will not deprive the other or others of them of the benefit of the statute (v). (r) Forsyth v. Bristowe, 1853, 8 Exch. 716; Dibb v. Walker, [1893] 2 Ch. 429. As to payment by a receiver appointed by the mortgagee pursuant to a power contained in the mortgage, see In re Hale, Lilley v. Foad, [1899] 2 Ch. 107. (s) Roddam v. Morley, 1857, 1 DeG. & J. 1, 16 R.C. 273; Dibb v. Walker, supra. (t) In re Hollingshead, Hollingshead v. Webster, 1888, 37 Ch.D. 651. (u) Cockburn v. Edwards, 1881, 18 Ch.D. 449; Stark v. Somer- ville, 1917, 40 O.L.R. 374, affirmed, 1918, 41 O.L.R. 591, 41 D.L.R. 496. See also Harlock v. Ashberry, 1882, 19 Ch.D. 539, and other cases cited on the question of part payment under s. 24 (recovery of money out of land) and s. 23 (action to recover land) in 265 and 273. (v ) R.S.O. 1914, c. 75, s. 56, supra; Paxton v. Smith, 1889, 18 O.R. 178. The provision just referred to applies, however, only to acknowledgment or payment under ss. 54 and 55, not to acknowl- edgment or payment under s. 24 (265, infra) or under ss. 14 and 23 (272, 273, infra). Lewin v. Wilson, 1886, 11 App. Cas. 639, at 522 CHAPTER XXVI. LIMITATION OF ACTIONS. B. ACTIONS TO RECOVER MONEY OUT OF LAND. 264. Period of limitation as to principal. A limitation of actions or other proceedings to recover sums of money secured by mortgage or lien or otherwise charged upon or payable out of any land or rent was imposed in Eng- land by the Real Property Limitations Act of 1833 (3 & 4 W. 4, c. 27) s. 40. This section was superseded by the statute of 1874 (37 & 38 V. c. 57) s. 8, by which the period of limitation was reduced from twenty to twelve years. The English statute of 1833 was adopted in Upper Canada in 1834 as 4 W. 4, c. l r s. 43, and by 38 V. c. 16, s. 11, the period was reduced to ten years (w). The corresponding provision in Ontario is the Limitations Act, R.S.O. 1914, c. 75, s. 24, as follows: 24. (1) No action shall be brought to recover out of any land or rent any sum of money secured by any mortgage or lien, or oth- erwise charged upon or payable out of such land or rent, or to re- cover any legacy, whether it is or is not charged upon land, but within ten years next after a present right to receive the same ac- crued to some person capable of giving a discharge for, or release of the same, unless in the meantime some part of the principal money or some interest thereon has been paid, or some acknowledg- ment in writing of the right thereto signed by the person by whom the same is payable, or his agent, has been given to the person en- titled thereto or his agent; and in such case no action shall be brought but within ten years after such payment or acknowledg- ment, or the last of such paymenta or acknowledgments if more than one, was made or given. (2) Notwithstanding the provisions of subsection 1, a lien or charge created by the placing of an execution or other process against land in the hands of the sheriff, or other officer to whom it is directed, shall remain in force so long as such execution or other process remains in the hands of such sheriff or officer for execution and is kept alive by renewal or otherwise. The words "out of any land or rent'' in the first and sec- ond lines of the section are not in the English statute. They % pp. 646, 647; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106. As to the acknowledgment by one of several mortgagees in the case of an action to redeem, see 281, infra, (w) Cf. 269, infra. 264. PERIOD OF LIMITATION AS TO PRINCIPAL. 52S were introduced into the Ontario statute in 1887 (x) and were apparently intended to confirm the construction placed upon the statute in Ontario, namely, that a personal action on the covenant was governed by the predecessor of s. 49 (y) and that it was only an action to recover money out of the land that was governed by s. 24 (z). In England, on the contrary, it has been held that the provision of the English statute cor- responding to s. 24 applies also to an action on the coven- ant (a). "Action" is defined by s. 2 as including any civil pro- ceeding, and a sale under the power of sale contained in a mortgage is a "proceeding" under s. 24, which the mortgagee or his assignee is precluded from taking after the lapse of ten years (&). An action for foreclosure is not within s. 24, but is an ac- tion to recover land within s. 5 (c). It was held that the right of an execution creditor under a writ of fieri facias in the hands of the sheriff of the county in which the lands of the debtor are situate is a "lien," the .money mentioned in the court is "money charged upon land," and taking steps to sell under the writ is a "proceeding." Therefore if a writ had been more than ten years in the (x) R.S.O. 1887, c. Ill, s. 23. (y) See 261, supra. (z) McDonald v. Elliott, 1886, 12 O.R. 98, following Allan v. McTavish, 1878, 2 O.A.R. 278. (a) Sutton v. Sutton, 1882, 22 Ch.D. 511, 16 R.C. 298; cf. Kirk- land v. Peatfield, [1903] 1 K.B. 756. Sutton v. Sutton was disting- uished in In re Powers, Lindsell v. Phillips, 1885, 30 Ch.D. 291; see also In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106, as to an action against a surety, not the mortgagor. The decision in Sutton v. Sut- ton applies to an action on the covenant, not to a simple contract debt. Barnes v. Glenton, [1899] 1 Q.B. 885. (b) McDonald v. Grundy, 1904, 8 O.L.R. 113; cf. Smith v. Brown^ 1890, 20 O.R. 165. (c) See 270, infra. 524 CHAPTER XXVI. LIMITATION OP ACTIONS. sheriff 's hands, and no payment or acknowledgment had in the meantime been made or given, the lien was gone and the pro- ceeding would be restrained (d). In 1905, however, by 5 B. 7, c. 13, s. 10, the section was amended by the addition of a proviso which is now reproduced in altered form in sub-sec. 2. An action on the judgment of a court of record is barred after the expiration of twenty years (e). The words "present right to receive" are to be read ac- cording to their ordinary meaning in the English language, and the statute runs from the time at which the charge upon the land comes into existence, not from that at which the right to sue arises (/). It is provided by R.S.O. 1914, c. 75, s. 25, as follows : 25. No action shall be brought to recover any sum of money or legacy charged upon or payable out of any land or rent, and secured by an express trust, or to recover any arrears of rent or of interest in respect of any sum of money or legacy so charged or payable and so secured, or any damages in respect of such arrears, except within the time within which the same would be recoverable if there were not any such trust. This section is derived from the English statute 37 & 38 V. c. 57, s. 10, adopted in Ontario in 1874 by 38 V. c. 16; s. 13. The effect of the section when originally enacted was to modify slightly the equitable rule that no claim of a cestui que trust against his trustee for any property held upon an express trust or in respect of the breach of such trust should be held to be barred by any statute of limitations (r). The law as to the effect of lapse of time on a claim against a trus- tee was changed in England in 1888 by a statute which was adopted in Ontario in 1891 (s), but the amending statute (d) Neil v. Almond, 1897, 29 O.R. 63. This decision was follow- ed in In re Woodall, 1904, 8 O.L.R. 288. (e) Butler v. McMicken, 1900, 32 O.R. 422. (/) In re Owen, [1894] 3 Ch. 220, at p. 225; Hornsey Local Board v. Monarch Investment Building Society, 1889, 24 Q.B.D. 1. (r) Underbill, Law of Trusts, 7th ed., p. 486. (s) See now R.S.O. 1914, c. 75, ss. 46, 47 and 48. 264. PERIOD OF LIMITATION AS TO PRINCIPAL. 525 is subject to some important exceptions, and in some circum- stances the ol'd equitable rule may still govern (f). 265. Acknowledgment or part payment. - In the case of an action to recover money out of land an acknowledgment, in order to create a new starting point from which time will run, must be given in writing signed by the person by whom the money is payable or his agent to the per- son entitled thereto orhis agent (g). The words ' ' by the person by whom the same is payable or his agent," used in the statute with reference to an acknowl- edgment, are governed by the word "signed" and cannot grammatically be read as referring also to a part payment. It has, however, been held that the principle underlying the statutes of limitation is that a payment, in order to create a new starting point, must be a payment by a person liable, as an acknowledgment of right. A payment under this section must be a payment of principal or interest and must be made by the mortgagor or his agent, or at least by a person bound or entitled to make a payment of principal or interest for the mortgagor (7i). A payment of rent made by a tenant of the mortgaged property to the mortgagee pursuant to a notice by the mortgagee 'requiring the rent to be paid to him is not such a payment. It is not a payment of principal or interest, but a payment of rent. It is merely one item chargeable against the mortgagee in the account between him and the mortgagor a*n account which may contain many items, e.g., for re- (O As to what is an "express trust" within the meaning of the old rule, see review of cases in Taylor v. Davies, 1917, 41 O.L.R. 403., (g) R.S.O. 1914, c. 75, s. 24. See 264, supra. Compare the terms of s. 14 as to the acknowledgment required in order to create a new starting point in the case of an action to recover land. See 272. (h) As was the receiver in the case of Chinnery v. Evans, 1864, 11 H.L.C. 115. 526 CHAPTER XXVI. LIMITATION OF ACTIONS. pairs, expenses, etc., to the credit of the mortgagee besides principal and interest. It is not a payment by a person liable to pay principal or interest, and cannot therefore amount to an acknowledgment of liability on the mortgage or to an ad- mission of the mortgagee's right (i). If, however, the holder of a mortgage upon land is also en- titled to the rents and profits of the land, for instance, as life tenant, he is deemed to pay himself out of the rents and pro- fits, and his receipt of the rents will be sufficient payment to prevent the statute from running (j). The solicitor who acted for a mortgagor, and after his death for his executors, and also for the mortgagees, paid the Interest upon the mortgage to the mortgagees regularly up to a time within the statutory period before the commencement of an action to enforce the mortgage. It was held this was prima facie a payment ''by the person by whom the same shall be payable" so as to throw on the representatives of the mortgagor the onus of proving that the statute had run and that the mortgage debt had not been kept alive. It was also held that the payment of interest by a person who, as -between himself and the mortgagor, was bound to pay it, though he was under no contract with the mortgagee to do so, was a payment ' ' by the person by whom the same shall be payable ' ' so as to interrupt the running of the statute (ft). A payment made by a purchaser of the equity of redemp- tion who is bound as between himself and the mortgagor to pay is sufficient to prevent the statute from running in favour of the mortgagor (I). (i) Harlock v. Ashberry, 1882, 19 Ch.D. 539; cf. McDonald v. iJrundy, 1904, 8 O.L.R. 113, at pp. 115, 116. " (/) Burrell v. Earl of Egremont, 1844, 7 Beav. 205;. Topham v. Booth, 1887, 35 Ch.D. 607; Currie v. Currie, 1910, 20 O.L.R. 375. (fc) Bradshaw v. Widdrington, [1902] 2 Ch. 430, in which Har- lock v. Ashberry, supra, was considered and explained. (I) See 272, infra; Trust and Loan Co. v. Stevenson, 1892, 20 265. ACKNOWLEDGMENT OR PART PAYMENT. 527 Payment of interest by the specific devisee of part of a testator's real estate which was subject to a mortgage created by the testator was held to be sufficient to keep the mort- gagee's right of action alive against the specific devisees of other parts of the real estate which were not subject to the mortgage and thus entitle the mortgagee to an order for ad- ministration of the whole of the testator's real estate (m). The provision of s. 56 of the Limitations Act (n) by which no joint debtor or covenantor is to lose the benefit of the statute by reason only of an acknowledgment or payment made by another joint debtor or covenantor applies only to an ac- knowledgment or payment under ss. 54 and 55, not to an ac- knowledgment or payment under ss. 14 and 23 (0) or under s 24 (p). The acknowledgment or payment under s. 24 must be given or made "in the meantime," that is to say, before the statutory period has run (g). 266. Limitation as to arrears of interest. The amount of arrears of interest which may be recovered out of the land is governed by R.S.O. 1914, c. 75, s. 18, as follows : O.A.R. 66; Ross v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648. See also cases on a similar point under s. 54 (263). (m) In re Lacey, Howard v. Lightfoot, [1907] 1 Ch. 330; cf. Ames v. Mannering, 1859, 26 Beav. 583 (payment by dowress); Chin- nery v. Evans, 1864, 11 H.L.C. 115 (payment by owner of equity in one of several parcels subject to same mortgage) ; McKay v. Hutch- ings, 1917, 41 O.L.R. 46, (payment by one of the heirs of the mort- gagor) . (n) See 263, supra. (o) See 272, 273, infra. (p) Lewin v. Wilson, 1886, 11 App. Cas. 639, at pp. 646, 647; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106. It was held in the latter case that under s. 24 a payment by the mortgagor interrupted the running of the statute in favour of a surety. (q) See the cases cited as to acknowledgment under s. 20 in 281, infra. 528 CHAPTER XXVI. LIMITATION OF ACTIONS. 18. (1) No arrears of rent, or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, whether it is or is not charged upon land, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, or action, but within six years next after the same respectively has become due, or next after any ac- knowledgment in writing of the same has been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent. (2) This section shall not apply to an action for redemption brought by a mortgagor or any person claiming under him. Sub-sec. 1 is derived from the English statute 3 & 4 W. 4, c. 27, s. 42, adopted in Upper Canada by 4 W. 4, c. 1, s. 45. Sub-sec. 2 was added to the Ontario statute in 1910. Money to arise from the sale of land is within this section. Where a married woman entitled, after the death of a tenant for life, to a share of a fund arising from the proceeds of lands devised upon trust for sale, joined with her husband in a mortgage, by deed acknowledged, of her reversionary estate, it was held that the wife's estate was "money payable ' out of land" and that the mortgagee could not recover more than six years arrears of interest (u). But in the case of a mortgage of personalty or of a reversionary interest in a sum of money secured by mortgage, the mortgagee is not restricted to six years arrears. The proceeds of the sale of mortgaged premises, sold under the power of sale in a mortgage by the trustees of the mort- gagee, were paid into court in a suit for the administration of the mortgagee's estate. There being nearly twenty years arrears of interest due on the mortgage, exceeding in amount the fund in court, the trustees petitioned for payment out of the fund to satisfy such arrears, and the assignee of the mortgagor way served with the petition. It was held that the petition was (u) Bowyer v. Woodman, 1867, L.R. 3 Eq. 313. (v) Smith v. Hall, 1878, 9 Ch.D. 143; Mellersh v. Brown, 1890,. 45 Ch.D. 225. 266. LIMITATION AS TO ARREARS OF INTEREST. 529 not a suit to recover arrears of interest within the section, and therefore that the mortgagee's trustees were not limited to six years arrears, and the fund was ordered to be paid over to them (w). If, however, proceedings for sale are com- menced, the sale can be stopped by the payment of the amount legally owing, and in the case of a person interested in the equity of redemption other than the mortgagor or his per- sonal representative the interest included in such amount would be limited to six years arrears (x). It was held at an early date that a foreclosure suit was within the statute, notwithstanding the argument that the 'suit was not to recover money but to foreclose the equity of redemption (y). On this point the decision has never since been called in question, but the case has in effect been over- ruled in so far as it decided that a mortgagee in a foreclosure suit was entitled, notwithstanding the statute, to charge the mortgaged estate with full arrears of interest (2). The re- sult of the authorities is that no more than six years' arrears of interest can be recovered out of the land, although in an action upon the covenant arrears of interest for ten years can be recovered (a). Where no encumbrancer intervened between the mortgag- or and mortgaged, it was held that the mortgagee was entitled to full arrears of interest, on the ground that, even if he was entitled to only six years' arrears by way of specific charge upon the land, he might recover the rest of the arrears on the (w) Edmunds v. Waugh, 1866, L.R. 1 Eq. 418, 16 R.C. 291. See also In re Marshfield, Marshfield v. Hutchins, 1887, 34 Ch.D. 721; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch. 385 (where the decisions are reviewed); Ford v. Allen, 1869, 15 Gr. 565. (x) McMicking v. Gibbons, 18^97, 24 O.A.R. 586, at p. 592. (y) DuVigier v. Lee, 1843, 2 Hare 326. (2) Hunter v. Nockolds, 1850, 1 Mac. & G. 640. (a) Airey v. Mitchell, 1874, 21 Gr. 510, at p. 512 (twenty years in the case of a mortgage made before the 1st of July, 1894: see s. 49, in 261, supra). 530 CHAPTER XXVI. LIMITATION OF ACTIONS. covenant and could obtain a lien on the land by placing a writ of execution in the sheriff's hands (b). The decision as applied to the foreclosure action is, however, open to serious question because the effect is to add the excess over six years' arrears to the price of redemption, and thus, as to the excess, to deprive the execution debtor of a portion of the twelve months which the law allows him for paying so far as his lands are concerned. The decision as applied to a redemption action was formerly open to the same objection. In a foreclosure action it is clear that if encumbrances in- tervene between the mortgagor and the mortgagee, the latter cannot as against the subsequent encumbrancers claim more than six years' arrears against the land, although he may be entitled to judgment and execution against the mortgagor on the covenant. In a redemption action on the other hand it was held (c) that the mortgagee was entitled to full arrears ven as against subsequent encumbrancers, on the ground that the statute applied only to a case where the mortgagee by action was seeking to enforce payment. This decision was overruled, on this point in an action for redemption by a sec- ond mortgagee against a first mortgagee, the mortgagor not being a party on the principle that the price of redemption is the same as that of foreclosure (d). The last mentioned de- cision has been overruled by the amendment of the statute now embodied in sub-s. 2 of s. 18. (b) Howeren v. Bradburn, 1875, 22 Gr. 96 (a redemption suit under the Administration of Justice Act, 1873); Macdonald v. Mac- donald, 1886, 11 O.R. 187 (a foreclosure action under the Judicature Act). (c) Delaney v. Canadian Pacific Ry. Co., 1890, 21 O.R. 11; see also British Canadian Loan and Agency Co. v. Farmer, 1904, 15 M. R. 593. (d) McMicking v. Gibbons, 1897. 24 O.A.R. 586; see also Dingle v. Coppen, [1899] 1 Ch. 726; In re Lloyd, Lloyd v. Lloyd, [1903] 1 Ch. 385. 266. LIMITATION AS TO ARREARS OF INTEREST. 531 The ease of a prior mortgagee having been in possession within. one year before action is brought by a subsequent mort- gagee is provided for by R.,S.O. 1914, c. 75, s. 19, as follows: 19. Where any prior mortgagee or other encumbrancer has been in possession of any land, or in receipt of the profits thereof, within one year next before an action is brought by any person entitled to a subsequent mortgage or other encumbrance on the same land, the person entitled to such subsequent mortgage or encumbrance may recover in such action the arrears of interest which have be- come due during the whole time that such prior mortgagee or en- cumbrancer was in such possession or receipt, although such time may have exceeded such term of six years. This section is derived from the English statute 3 & 4 W. 4, c. 27, s. 42, adopted in Upper Canada by 4 W. 4, c. 1, s. 45. 267. Acknowledgment. An acknowledgment which under s. 18 of the Limitations Act will afford a new starting point for the period of limita- tion applicable to an action to recover arrears of interest must be in writing and signed by the person by whom the interest was payable or his agent, and must be given to the person en- titled thereto or his agent (e). Upon a sale of land which was subject to mortgage the pur- chaser and the mortgagee enquired from the mortgagee the amount owing, and the mortgagee signed a memorandum, en- dorsed upon the mortgage, of the amount claimed by him. The conveyance to the purchaser was made subject to the mortgage, upon which there was stated to be owing the amount claimed, the payment of which amount the plaintiff assumed. The conveyance was not executed by the purchaser. It was held that there was no sufficient acknowledgment, and that as against an encumbrancer claiming under the purchaser the mortgagee was entitled only to six years arrears of interest (e) See 266, supra, where the text of the section is quoted. (/) Colquhoun v. Murray, 1899, 26 O.A.R. 204. 532 CHAPTER XXVI. LIMITATION OF ACTIONS. An acknowledgment is available only against the person giving it. Thus an acknowledgment given by the mortgagor will not enable the mortgagee to whom it was given to recover more than six years' arrears of interest as against a second mortgagee whose mortgage was in existence at the time of the acknowledgment (g). An acknowledgment by one of two ex- ecutors and devisees in trust of real estate, against the wishes of the other, that more than six years' arrears of interest are due on a mortgage created by their testator cannot be treated as the valid act of the two in their capacities as trustees, and is not a sufficient acknowledgment under the statute (7i). Under ss. 20 and 24, applicable to actions for redemption (*') and for the recovery of money out of land (j) respect- ively, the running of the statute will be interrupted if an ac- knowledgment is given ' ' in the meantime, ' ' that is before the expiration of the period of limitation. No similar words oc- cur in s. 18, and it would seem that under this section an acknowledgment given more than six years after the interest falls due would be sufficient in point of time, provided it is given before an action to recover the principal or for fore- closure, sale or possession is barred. C. ACTIONS FOR POSSESSION, FORECLOSURE OR SALE. 268. Limitation prior to 1833. A mortgagor's right to redeem will not be barred by lapse of time so long as he remains in possession, but it may be bar- red if he is out of possession. Conversely, if a mortgagee has obtained possession, his right to foreclose will not be barred by lapse of time so long as he remains in possession, but if he (9) Bolding v. Lane, 1863, 1 DeG. J. & S. 122. (ft> Astbury v. Astbury, [1898] 2 Ch. 111. (i) See 281, infra. (;) See 265, supra. 268. LIMITATION PRIOR TO 1833. 533 is out of possession his right to foreclose or to bring an action for possession may be barred by lapse of time. In England, prior to 1833, there was no statute limiting the time within which a mortgagor out of possession might sue for redemption or within which a mortgagee out of pos- session might sue for foreclosure. There was, however, a stat- ute limiting the time within which a mortgagee might bring an action for possession of the mortgaged land, for by 21 Jac. I, c. 16, s. 1, it was enacted that no entry should be made into any lands but within twenty years after the right or title to the same should accrue. This statute was held to apply only to claims which were recognized in a court of law, and to have no application to a purely equitable claim, for instance, that of a mortgagor to redeem after his estate in the lands had been forfeited by his default in payment of the mortgage money. The Court of Chancery, however, applied the statute by analogy. ' ' For where the remedy in Equity is correspondent to the remedy at Law, and the latter, is subject to a limit in point of time by the Statute of Limitations, a Court of Equity acts by analogy to the statute, and imposes on the remedy it affords the same limitation. This is the meaning of the com- mon phrase, that a Court of Equity acts by analogy to the Statute of Limitations, the meaning being, that where the suit in Equity corresponds with an action at Law which is included In the words of the statute, a Court of Equity adopts the en- actment of the statute as its own rule of procedure. But, if any proceeding in equity be included within the words of the statute, there a Court of Equity, like a Court of Law, acts in obedience to the statute. " (&) Thus, by analogy to the statute of James the rule became established in Chancery ''that after twenty years' possession of the mortgagee, he should not be disturbed, or otherwise it (fc) Knox v. Gye,. 1872, L.R. 5 H.L. 656, Lord Westbury, at p. B74. 534 CHAPTER XXVI. LIMITATION OF ACTIONS. would make property very precarious, and a mortgagee would be no more than a bailiff to the mortgagor, and subject to an account ; which would be a great hardship. " (I) Conversely, the Court of Chancery would not entertain a suit for fore- closure after the lapse of the 'period of twenty years which would operate as a bar to a common law action for recovery of possession of the land. Similarly, by analogy to the statute, if the mortgagor wa& prevented from asserting his claim by reason of any of the impediments mentioned in the statute, namely, imprisonment, infancy, coverture, unsoundness of mind or being beyond the seas (not having absconded), a period of ten years after the removal of the impediment was allowed to him. A very slight act on the part of the mortgagee, acknowledging the title of the mortgagor, was sufficient to take the case out of the statute. The case was also taken out of the statute by the mortgagor's remaining in possession of part of the mortgaged lands (m). 269. The Real Property Limitation Acts. The statute of James, so far as it was applied by analogy or otherwise to claims to real property, was superseded in Eng- land by the Real Property Limitation Act of 1833 (3 & 4 W. 4, c.. 27) and in Upper Canada by a similar statute of 1834 (4 W. 4, c. 1). The general period of limitation stated in these statutes was twenty years, but in 1874 by 37 & 38 V. c. 57 (operative from the 1st of January, 1879) the period under the English statute was reduced to twelve years, and (0 Lord Hardwicke in Anon., 1746, 3 Atk. 313. See also Bon- ney v. Ridgard, 1784, 1 Cox's Gas. in Ch. 145, at p. 149; Barron v. Martin, 1815, 19 Ves. 327. (m) 2 W. & T.L.C. Eq. 6th ed., pp. 1219-1220. As to the present law respecting the effect of the disability of the person entitled to redeem, see 278; as to effect of an acknowledgment of title by the mortgagee, see 281; as to effect of the mortgagor's possession of part of the mortgaged lands, see 280. . REAL PROPERTY LIMITATION ACTS. 535 in the same year by 38 V. c. 16 (operative with some excep- tions from the 1st of July, 1876) the period in Ontario was reduced to ten years. The provisions of these statutes relating to actions or other proceedings to recover money charged upon or payable* out of land or rent have been already discussed (n). Those re- lating to actions for possession, foreclosure or sale, and re- demption will next be considered (0). Owing to the changes made from time to time in the stat- utes of limitations, it has sometimes become necessary to de- cide the question whether the statute in force at the time of action brought or that in force at the time when the right ac- crues should govern. The correct rule would seem to be that if an action is brought to enforce an alleged right, or if in a pending action a claim is made by amendment, the cause of action is governed by the appropriate statute of limitations which is in force at the time of the bringing of the action or of the making of the amendment, as the case may be (p), but ' in some cases the court seems to have acted on the rule that the governing statute is the statute which was in force when the right accrued (q). 270. Action to recover land. The English Real Property Limitation Act of 1833 con- tained no provision specially applicable to a suit for foreclos- (n) See 264-267, supra. (o) The provisions affecting the mortgagee's right to sue will be first discussed. As to the provisions affecting the mortgagor's right to sue for redemption, see 277 ff. (p) Dumble v. Larush, 1878-9, 25 Gr. 552, 27 Gr. 187; Harris v. Prentiss, 1880, 30 U.C.C.P. 484, S.C. varied on another point, sub now. Harris v. Mudie, 1882, 7 O.A.R. 414; In re Loveridge, Pearce v. Marsh, [1904] 1 Ch. 518. (q) Faulds v. Harper, 1884, 9 O.A.R. 537, 1886, 11 Can. S.C.R. 639; Smith v. Darling, 1916, 36 O.L.R. 587, at p. 590, S.C. 55 Can. S.C.R. 82, 36 D.L.R. 1. 536 CHAPTER XXVI. LIMITATION OF ACTIONS. ure eo nomine by a mortgagee out of possession, but it pro- vided in general terms that no person should ' ' make an entry ' ' or "bring an action to recover any land" after the statutory period. This general provision, originally enacted by s. 2 of the statute of 1833, was superseded by s. 1 of the statute of 1874 (which reduced the limitation period from twenty to twelve years), and the corresponding provision in Ontario is now contained in the Limitations Act, R.S.O. 1914, c. 75, s. 5. as follows : 5. No person shall make an entry or distress, or bring an ac- tion to recover any land or rent, but within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to some person through whom he claims, or if such right did not accrue to any person through whom he claims, then within ten years next after the time at which the right to make such entry or distress, or to bring such action, first accrued to the person making or bringing the same. This section is amplified by s. 6 which defines in detail the point of time at which in various circumstances the right to make an entry or distress or to bring an action shall be deemed to have first accrued within the meaning of s. 5, and s. 7 which makes special provision as to the effect upon a future estate of the fact that the person entitled to the particular estate upon which the future estate is expectant is out of posses- sion (r). After some conflict of opinion, it was held that an action for foreclosure or sale is an action to recover land within the meaning of s. 5, not an action to recover money charged on land under s. 24 (s). The statute does not apply to cases merely of want of ac- (r) See 271, infra. (s) Wrixon v. Vize, 1842, 3 Dr. & War. 104; Harlock v. Ash- berry, 1882, 19 Ch.D. 539; Pugh v. Heath, 1882, 7 App. Cas. 235, 16 R.C. 389; Fletcher v. Rodden, 1882, 1 O.R. 155; Trust and Loan Co. v. Stevenson, 1892, 20 O.A.R. 66, at pp. 79-80. As to the case of Pugh v. Heath, see also 274. 270. ACTIONS TO RECOVER LAND. 537 tual possession by the plaintiff, but to those cases only where he has been out of possession and another person has been in possession for the statutory period. There must be both want of possession by the person who has the right and actual pos- session by another, whether adverse or not, to be protected, to bring the case within the statute. Thus, where the owner of the fee simple of a close, with minerals under it, conveyed the surface, reserving the minerals with the right of entry to get them, and he afterwards granted the minerals with such right of entry, it was held that mere non-user for the statut- ory period was not sufficient to bar the grantee's right of entry to get the minerals, no other person having worked or been in possession of the minerals (t). The owner of land is deemed to be in possession of waste lands which are not in the actual possession of another. Thus, where a trespasser took possession of the land of another, and without having held long enough to acquire title, abandoned possession, it was held that the owner was restored, without any actual entry, to the possession which he had before the trespass (u). "Where the mortgaged lands are not re-demised to the mortgagor, and the land is vacant at the time of the execution of the mortgage, the mortgagee is deemed to be in possession by operation of law, and the presumption of payment of the mortgage moneys after the lapse of the statutory period does not arise, even though the mortgagee has never made an ac- tual entry or received any payment on account of the mort- gage. The mere fact that the remedy on the covenant is barred by the statute will not establish a payment so as to reconvey the legal title to the mortgagor (v). So where a () Smith v. Lloyd, 1854, 9 Exch. 562, 16 R.C. 328. (w) Trustees, Executors, and Agency Co. v. Short, 1888, 13 App. Cas. 793; Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533. (v) Mahar v. Fraser, 1867, 17 U.C.C.P. 408. 538 CHAPTER XXVI. LIMITATION OF ACTIONS. right of entry has accrued to a mortgagee without actual en- try by him, and the mortgaged lands are subsequently left vacant before a title by possession has been acquired by any- one, the constructive possession thereof is in the mortgagee, and the statute does not run against him so as to extinguish his title to the lands, the mortgage being in default and no' presumption of payment arising (w). Where a purchaser in examining a title found a mortgage which matured over 80 years previously, apparently out- standing, and required the vendors to produce the discharge of it which they declined to do, it was held that under all the circumstances the mortgage must be presumed to have been paid (x). "Action" is defined by the interpretation clause of the Limitations Act, R.S.O. 1914, c. 75, s. 2, to include an infor- mation on behalf of the crown and any civil proceeding, but it is provided by s. 4 as follows : 4. (1) No entry, distress, or action shall be made or brought on behalf of His Majesty against any person for the recovery of or respecting any land or rent, or of land or for or concerning any revenues, rents, issues or profits, but within sixty years next after the right to make such entry or distress or to bring such action shall have first accrued to His Majesty. (2) Subsections 1 to 3, 5 to 7, and 9 to 12 of section 6 and sec- tions 7, 9 to 12 and 14 to 16 shall apply to rights of entry, distress or action asserted by or on behalf of His Majesty (/). (w) Delaney v. Canadian Pacific Ry. Co., 1891, 21 O.R. 11; cf. Bucknam v. Stewart, 1897, 11 M.R. 625 (land in a state of nature); British Canadian Loan and Agency Co. v. Farmer, 1904, 15 M.R. 593; Creamer v. Gooderham, 1914, 7 S.L.R. 173, 17 D.L.R. 235. It does not necessarily follow, however, that the mortgagee's posses- sion is such actual possession as will operate to bar the right to redeem. See 279. (x) Imperial Bank of Canada v. Metcalfe, 1886, 11 O.R. 467. (y) As to ss. 6, 7, and 9 to 12, see 271, infra; as to ss. 14 and 15, see 272; and as to s. 16, see 276. 271. WHEN THE RIGHT IS DEEMED TO ACCRUE. 539 271. When the right is deemed to accrue. The English Real Property Limitation Act of 1833 con- tained various provisions as to the point of time at which the right to make an entry or bring an action should be deemed to have first accrued within the meaning of s. 2 (2), and as to the effect upon a future estate of the fact that the person entitled to the particular estate upon which the future estate was expectant was out of possession. These provisions were amended by the statute of 1874. The coi responding provi- sions in Ontario are contained in R.S.O. 1914, c. 75, ss.6 to 13, as follows : 6. (1) Where the person claiming such land or rent, or some person through whom he claims, has, in respect of the estate or in- terest claimed, been in possession or in receipt of the profits of such land, or in receipt of such rent, and has, while entitled there- to, been dispossessed, or has discontinued such possession or re- ceipt, the right to make an entry or distress or bring an action to recover such land or rent shall be deemed to have first accrued at the time of such dispossession or discontinuance of possession, or at the last time at which any such profits or rent were so received. (2) Where the person claiming such land or rent claims the estate or interest of a deceased person who continued in such pos- session or receipt, in respect of the same estate or interest, until the time of his death, and was the last person entitled to such estate or interest who was in such possession or receipt, such right shall be deemed to have first accrued at the time of such death. (3) Where the person claiming such land or rent claims in respect of an estate or interest in possession, granted, appointed or otherwise assured by an assurance, to him or some person through whom he claims, by a person being, in respect of the same estate or interest, in the possession or receipt of the profits of the land, or in receipt of the rent, and no person entitled under such assurance has been in possession or receipt, such right shall be deemed to have first accrued at the time at which the person so claiming or the person through whom he claims, became entitled to such pos- session or receipt by virtue of such assurance. (4) In the case of land granted by the Crown of which the grantee, his heirs or assigns, by themselves, their servants or agents, have not taken actual possession by residing upon or cultivating some part thereof, and of which some other person not claiming to- (z) R.S.O. 1914, c. 75, s. 5. See 270, supra. 540 CHAPTER XXVI. LIMITATION OF ACTIONS. hold under such grantee has been in possession, such possession having been taken while the land was in a state of nature, then un- less it is shown that such grantee or person claiming under him while entitled to the land had knowledge of the same being in the actual possession of such other person, the lapse of ten years shall not bar the right of sucn grantee or any person -claiming under him to bring an action for the recovery of such land, but the right to bring an action shall be deemed to have accrued from the time that such knowledge was obtained; but no such action shall be brought or entry made after twenty years from the time such possession was taken. (5) Where any person is in possession or in receipt of the pro- fits of any land, or in receipt of any rent by virtue of a lease in writing, by which a rent amounting to the yearly sum of $4 or up- wards is reserved, and the rent reserved by such lease has been re- ceived by some person wrongfully claiming to be entitled to such land or rent in reversion immediately expectant on the determina- tion of such lease, and no payment in respect of the rent reserved by such lease has afterwards been made to the person rightfully en- titled thereto, the right of the person entitled to such land or rent, subject to such lease, or of the person through whom he claims to make an entry or distress, or to bring an action after the determina- tion of such lease, shall be deemed to have first accrued at the time at which the rent reserved by such lease was first so received by the person so wrongfully claiming, and no such right shall be deemed to have first accrued upon the determination of such lease to the person rightfully entitled. (6) Where any person is in possession or in receipt of the pro- fits of any land, or in receipt of any rent as tenant from year to year or other period, without any lease in writing, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued at the determin- ation of the first of such years or other periods, or at the last time when any rent payable in respect of such tenancy was received, whichever last happened. (7) Where any person is in possession or in receipt of the pro- fits of any land, or in receipt of any rent, as tenant at will, the right of the person entitled subject thereto, or of the person through whom he claims, to make an entry or distress, or to bring an action to recover such land or rent, shall be deemed to have first accrued either at the determination of such tenancy, or at the expiration of one year next after the commencement of such tenancy, at which time such tenancy shall be deemed to have determined. "271. WHEN THE RIGHT IS DEEMED TO ACCRUE. 541 (8) No mortgagor or cestui que trust shall be deemed to be a tenant at will to his mortgagee or trustee within the meaning of the next preceding subsection (a). (9) Where the person claiming such land or rent, or the per- son through whom he claims, has become entitled by reason of any forfeiture or breach of condition such right shall be 'deemed to have first accrued when such forfeiture was incurred or such condition broken. (10) Where any right to make an entry or distress, or to bring an action to recover any land or rent, by reason of any forfeiture or breach of condition, has first accrued in respect of any estate or in- terest in reversion 'or remainder and the land or rent has not been recovered by virtue of such right, the right to make an entry or dis- tress, or to bring an action to recover such land or rent, shall be deemed to have first accrued in respect of such estate or interest at the time when the same became an estate or interest in possession as if no such forfeiture or breach of condition had happened. (11) Where the estate or interest claimed is an estate or interest in reversion or remainder, or other future estate or interest, and no person has obtained the possession or receipt of the profits of such land, or the receipt of such rent, in respect of such estate or in- terest, such right shall be deemed to have first accrued at the time at which such estate or interest became an estate or interest in pos- session. (12) A right to make an entry or distress, or to bring an action to recover any land or rent, shall be deemed to have first accrued, in respect of an estate or interest in reversion or remainder or other future estate or interest at the time at which the same became an estate or interest in possession, by the termination of any estate or estates in respect of which such land has been held or the profits thereof or such rent have been received, notwithstanding that the person claiming such land or rent, or some person through whom he claims, has, at any time previously to the creation of the estate or estates which have determined, been in the possession or receipt of the profits of such land, or in receipt of such rent. 7. (1) If the person last entitled to any particular estate on which any future estate or interest was expectant has not been in the possession or receipt of the profits of such land, or in receipt' of such rent, at the time when his interest determined, no such entry or distress shall be made and no such action shall be brought by any person becoming entitled in possession to a future estate or in- terest, but within ten years next after the time when the right to make an entry or distress, or to bring an action for the recovery of (c) As to a mortgagor in possession, see chapter 22, Action for Possession, 213. 542 CHAPTER XXVI. LIMITATION OF ACTIONS. such land or rent, first accrued to the person whose interest has so determined, or within five years next after the time when the estate of the person becoming entitled in possession has become vested in possession, whichever of those two periods is the longer. (2) If the right of any such person to make such entry or dis- tress, or to bring any such action, has been barred no person after- wards claiming to be entitled to the same land or rent in respect of any subsequent estate or interest under any deed, will or settlement executed or taking effect after the time when a right to make an entry or distress or to bring an action for the recovery of such land or rent, first accrued to the owner of the particular estate whose in- terest has so determined, shall make any such entry or distress, or bring any such action, to recover such land or rent. (3) Where the right of any person to make an entry or distress or to bring an action to recover any land or rent to which he has been entitled for an estate or interest in possession, has been barred by the determination of the period which is applicable in such case, and such person has, at any time during such period, been entitled to any other estate, interest, right, or possibility, in reversion, re- mainder or otherwise, in or to the same land or rent, no entry, dis- tress or action shall be made or brought by such person, or by any person claiming through him, to recover such land or rent in respect of such other estate, interest, right or possibility, unless in the meantime such land or rent has been recovered by some person en- titled to an estate, interest or right which has been limited or taken effect after or in defeasance of such estate or interest in possession. 8. For the purposes of this Act, an administrator claiming the estate or interest of the deceased person of whose property he has been appointed administrator, shall be deemed to claim as if there had been no interval of time between the death of such deceased per- son and the grant of the letters of administration. 9. No person shall be deemed to have been in possession of any land, within the meaning of this Act, merely by reason of having made an entry thereon. 10. No continual or other claim upon or near any land shall preserve any right of making an entry or distress, or of bringing an action. 11. No descent cast, discontinuance or warranty, which has happened or been made since the 1st day of July, 1834, or which may hereafter happen or be made, shall toll or defeat any right of entry or action for the recovery of land. 12. Where any one or more of several persons entitled to any land or rent as coparceners, joint tenants or tenants in common has or have been in possession or receipt of the entirety, or more than his 271. WHEN THE RIGHT IS DEEMED TO ACCRUE. 543 or their undivided share or shares of such land, or of the profits thereof, or of such rent for his or their own benefit, or for the benefit of any person or persons other than the person or persons entitled to the other share or shares of the same land or rent, such possession or receipt shall not be deemed to have been the possession or receipt of or by such last mentioned person or persons, or any of them. 13. Where a relation of the persons entitled, as heirs, to the possession or receipt of the profits of any land, or to the receipt of any rent, enters into the possession or receipt thereof, such posses- sion or receipt shall not be deemed to be the possession or receipt of or by the persons entitled as heirs. The possession of the mortgagor is not adverse to the rights of the mortgagee, and the statute does not begin to run against the mortgagee, until his right to bring the action arises (&). When the mortgage provides for possession by the mortgagor until default the right of action arises when the mortgagor has made default. If, however, the mortgage deed does not contain a provision that the mortgagor shall be entitled to remain in possession, the time will begin to run from the date of the mortgage (c). In the case of a mort- gage payable on demand, the right of action arises immed- iately upon the execution of the mortgage, and a demand is not necessary N (d) . Under a mortgage containing the statutory provision that in default of the payment of the interest the principal shall become payable, default in payment of interest has the effect of making the principal payable as if the time for payment had fully come, and a right of action therefore then arises and the Statute of Limitation then begins to run (e). It has been held that the registration of a 'discharge of mortgage has the effect of revesting the title in the mortgagor (&) Doe d. Jones v. Williams, 1836, 5 A. & E. 291; Wrixon v. Yize, 1842, 3 Dr. & War. 104. (c) Doe d. Roylance v. Lightfoot, 1841, 8 M. &. W. 553. (d) In re Brown's Estate, Brown v. Brown, [1893] 2 Ch. 300. (e) McFadden v. Brandon, 1904, 8 O.L.R. 610. 544 CHAPTER XXVI. LIMITATION OF ACTIONS. and gives a new starting point in favour of the mortgagor as against a person claiming possession adversely (/). In the case of a future estate or interest the right to bring an action continues for ten years after the estate has become an estate in possession, even although the action on the cov- enant has been in the meantime barred by lapse of time (g). The statute runs against a second mortgagee notwithstand- ing that the prior mortgagee is in possession during the whole or part of the statutory period, the second mortgagee's interest not being a future interest within the meaning of sub-s. 11 of s. 6 (li). Similarly the statute runs against a mortgagee of the fee simple notwithstanding the existence of a prior lease for 21 years. The interest mortgaged in such case is properly described, not as being a remainder of free- hold expectant upon the term of years, but as being the free- hold in possession subject to the term. Inasmuch as the ob- ject of a foreclosure action is not to obtain the payment of rent but to deprive the mortgagor of his right to redeem, the fact that the mortgagee will not by bringing his action derive any immediate pecuniary benefit from the rents and profits because, for instance, the rent is a peppercorn or has been paid in advance will not prevent time from running under the statute (i). One Sootheran, having obtained a registered conveyance of the land in suit from one of the respondents, executed, more than ten years before action, a reconveyance to both respondents, indorsing thereon a forged certificate of regis- tration, and later on mortgaged it to the appellants within (/) Henderson y. Henderson, 1896, 23 O.A.R. 577; see, however, Noble v. Noble, 1912, 27 O.L.R. 342, 9 D.L.R. 735. (g) Hugill v. Wilkinson, 1888, 38 Ch.D. 480. (h) Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533. (i) Wakefield and Barnsley Union Bank v. Yates, [1916] 1 Ch. 452. 271. WHEN THE RIGHT IS DEEMED TO ACCRUE. 545 the said ten years. It was held that the respondents were not protected by the Limitations Act. The reconveyance was valid between the parties thereto, and no action could have been brought against them before the date of the appellants' mortgage, which was within the statutory period (j). The English statute of 1833, 3 & 4 W. 4, c. 27, s. 26, pro- vided for the case of concealed fraud. The corresponding provision in Ontario is contained in R.S.O. 1914, c. 75, ss. 32 and 33, as follows: 82. In every case of a concealed fraud the right of any person to bring an action for the recovery of any land or rent of which he or any person through whom he claims may have been deprived by such fraud shall be deemed to have first accrued at and not before the time at which such fraud was or with reasonable diligence might have been first known or discovered. 33. Nothing in the next preceding section shall enable any owner of land or rent to bring an action for the recovery of such land or rent, or for setting aside any conveyance thereof, on account of fraud against any purchaser in good faith for valuable consideration, who has not assisted in the commission of such fraud, and who, at the time that he made the purchase did not know,and had no reason to believe that any such fraud had been committed. It has been held that s. 32 must be strictly construed. "Concealed fraud" is not to be inferfed from the simple fact that a person has got possession under a false assertion of title (k). Fraud, to take a case out of the statute, must be the fraud of the person who seeks the protection of the statute or his agent (I). 272. Acknowledgment. It is provided in Ontario by R.S.O. 1914, c. 75, ss. 14 and 15, as follows: 0) McVity v. Tranouth, [1908] A.C. 60, reversing 36 Can. S.C.R. 455. (fc) In re Jennens, 1880, 50 L.J. Ch. 4, 16 R.C. 359; Willis v. Earl Howe, [1893] 2 Ch. 545; see also Taylor v. Davies, 1917, 41 O.L.R. 403, at pp. 422, 423, and cases there cited. (0 Thome v. Heard, [1895] A.C. 495. 546 CHAPTER XXVI. LIMITATION OF ACTIONS. 14. Where any acknowledgment in writing of the title of the person entitled to any land or rent has been given to him or to his agent, signed by the person in possession or in receipt of the profits of such land, or in the receipt of such rent, such possession or re- ceipt of or by the person by whom such acknowledgment was given shall be deemed, according to the meaning of this Act, to have been the possession or receipt of or by the person to whom or to whose agent such acknowledgment was given at the time of giving the same, and the right of such last mentioned person, or of any per- son claiming through him, to make an entry or distress or bring an action to recover such land or rent, shall be deemed to havp first accrued at and not before the time at which such acknowledg- ment, or the last of such acknowledgments, if more than one, was given. 15. The receipt of the rent payable by any lessee, shall, as against such lessee or any person claiming under him, but subject to the lease, be deemed to be the receipt of the profits of the land -for the purpose of this Act. These sections are derived from the English statute of 1833, 3 & 4 W. 4, c. 27, ss. 14 and 35. An acknowledgment under s. 14 differs from that re- quired by s. 24. Under the former section the acknowledg- ment must be signed by the person in possession ; under s. 24 it may be signed by the person by whom the money sought to be recovered is payable or his agent (m). Under s. 14 an acknowledgment signed by an agent of the person in possession was held to be insufficient (n), but an acknowledgment signed by an agent at the dictation of the principal, who was too ill to write, has been held to be good (0). The acknowledgment under either section is good if given to the person entitled or his agent. An acknowledgment given to a third person is ineffectual (p) . Where a defendant by his answer in a suit in Chancery acknowledged the plaintiff 's- (m) See 265, supra. (n) Ley v. Peter, 1858, 3 H. & N. 101. (o) Corporation of Dublin v. Judge, 1847, 11 Ir. L.R. 8. (p) Fursdon v. Clogg, 1842, 10 M. & W. 572. 272. ACKNOWLEDGMENT. 547 title this was held in a subsequent suit to be a good acknowl- edgment (q). An acknowledgment to a trustee of the person entitled is sufficient to give the statute a new starting point (r). An acknowledgment made by the person in possession to the mortgagor will have the effect of saving the mortgagee's rights (s). It may be laid down as a general rule that any form of words that may reasonably be construed into an admission of the right of the person entitled will be sufficient. A letter written by the person in possession, asking for time for pay- ment, to the mortgagee 's solicitor in reply to a letter demand- ing payment, is a good acknowledgment (t). The words in the section "at the time of giving same" mean at the time the acknowledgment was signed and not necessarily at the date it bears on its face (w). An oral acknowledgment is insufficient to prevent the statute from running (v), but where a written acknowledg- ment has been lost, it may be proved by parol (w). An acknowledgment given after the expiration of the statutory period is too late (x), as the title of the person claiming is extinguished after the lapse of the statutory per- iod (y). (q) Goode v. Job, 1858, 28 L.J.Q.B. 1. (r) Mclntyre v. The Canada Co., 1871, 18 Gr. 367. (s) Hooker v. Morrison, 1881, 28 Gr. 369. (*) Fursdon v. Clogg, 1842, 10 M. & W. 572. (tt) Doe d. Curzon v. Edmunds, 1840, 6 M. & W. 295. vv) Doe d. Perry v. Henderson, 1847, 3 U.C.R. 486, at p. 499. (w) Haydon v. Williams, 1830, 7 Bing. 163. (a?) McDonald v. Mclntosh, 1851, 8 U.C.R. 388; Doe d. Perry v. Henderson, 1846, 3 U.C.R. 486; Sanders v. Sanders, 1881, 19 Ch.D. 373. As to an acknowledgment under s. 20, see 281, infra. (y) R.S.O. 1914, c. 75, s. 16. See 276, infra. 548 CHAPTER XXVI. LIMITATION OF ACTIONS. 273. Part payment. The English statute of 1833, 3 & 4 W. 4 c. 27, also con- tained a section limiting the time within which an action might be brought to recover any sum of money secured by any mortgage or lien or otherwise charged upon or payable out of land or rent, and by this section provision was made as to the effect not only of an acknowledgemnt in writing, but also of a payment of part of the principal or interest (z). As the provision just mentioned was confined to an action to recover money, an additional and explanatory stat- ute 7 W. 4 & 1 V. c. 28 was passed in England in 1837 "for the purpose of preserving in the mortgagee the right to make an entry and bring an ejectment to recover the lands" (a). This explanatory statute was superseded by s. 9 of the statute of 1874 (which reduced the limitation period from twenty to twelve years). The English statute was adopted in Upper Canada in 1853 by 16 V. c. 121, and the period was reduced to ten years by the statute 38 V. c. 16, s. 12. The provision now appears in E.S.O. 1914, c. 75, s. 23, as follows : 23. Any person entitled to or claiming under a mortgage of land may make an entry or bring an action to recover such land, at any time within ten years next after the last payment of any part of the principal money or interest secured by such mortgage, although more than ten years have elapsed since the time at which the right to make such entry or bring such action first accrued. A payment under s. 23 must be a payment by a person liable to pay as mortgagor or his agent, or at least by a person bound or entitled to make a payment of principal or interest for the mortgagor (&). A payment of rent made by a tenant of the mortgaged property to the mortgagee pursuant to a (z) This provision was amended in 1874 and the corresponding provision in Ontario is R.S.O. 1914, c. 75, s. 24. See 264 and 265, supra. (a) Chinnery v. Evans, 1864, 11 H.L.C. 115, at p. 133. (6) Chinnery v. Evans, 1864, 11 H.L.C. 115. 273. PART PAYMENT. 549 notice by the mortgagee requiring the rent to be paid to him is not such a payment (c) , but a payment made by any person ' ' concerned to answer the debt, " or by a person who under the mortgage contract is entitled to make a tender, and from whom the mortgagee is bound to accept a tender, of money for the redemption of the mortgage, is a sufficient payment (d). So, a payment is sufficient if made by a person who has become bound to the debtor to pay, for instance, a transferee of the equity of redemption who is bound as between himself and the transferor to pay, notwithstanding that such transferee has himself transferred the equity to a third person (e). The provision of s. 56 of the Limitations Act (/) by which no joint debtor or covenantor is to lose the benefit of the statute by reason only of an acknowledgment or payment by another joint debtor or covenantor applies only to an acknowl- edgment or payment under ss. 54 and 55, not to an acknowl- edgment or payment under s. 24 or under ss. 14 and 23 (g). The provisions of s. 23 apply not only as against the mort- gagor and persons claiming under him but also as against a person who has acquired a good title by virtue of the statute of limitations as against the mortgagor and those claiming under him (ft). The section does not, however, confer a new right of entry on a mortgagee when at the date of the mort- (c) Harlock v. Ashberry, 1882, 19 Ch.D. 539. See 265, supra, where this case is more fully referred to. (d) Lewin v. Wilson, 1886, 11 App. Cas. 639, at pp. 644, 646. In this case it was held that a payment by the principal debtor was sufficient to create a new starting point as against the land of a surety. (e) Trust & Loan Co. v. Stevenson, 1892, 20 O.A.R. 66; see also Ross v. Schmitz, 1913, 6 S.L.R. 131, 14 D.L.R. 648. (/) See 265, supra. (g) Lewin v. Wilson, supra; In re Frisby, Allison v. Frisby, 1889, 43 Ch.D. 106. (h) Ludbrook v. Ludbrook, [1901] 2 K.B. 96. 550 CHAPTER XXVI. LIMITATION OF ACTIONS. gage a person is in possession in whose favour the statute has already begun to run against the mortgagor (i). The payment of taxes by the moragagor constitutes a suffi- cient acknowledgment of the mortgagee's title so as to inter- rupt the running of the statute, if the payment is made in pursuance of an express agreement with the mortgagee that the mortgagor will pay the taxes as rent, and no other rent is stipulated for (j), but the payment of the taxes only is not sufficient if it has been agreed that the taxes should be paid in addition to a named rent (k). 274. Effect of bringing action. The bringing of an action for possession will prevent the further lapse of time from being a bar to the plaintiff's claim (I) unless the action is afterwards discontinued or the writ of summons is not served or renewed within the period al- lowed for these purposes (w). Where an action has become defective by the death of a party or otherwise, the discretion of the court will not be ex- ercised to allow the proceedings to continue if there has been great delay or gross negligence (w). It has been held that a proceeding under the Quieting (i) Thornton v. France, [1897] 2 Q.B. 143. In so far as Cam- eron v. Walker, 1890, 19 O.K. 212, is a decision to the contrary, it is overruled by Thornton v. France: see McVity v. Trenouth, 1905, 9 O.L.R. 105, at p. 109, S.C. 36 Can. S.C.R. 455, [1908] A.C. 60. (/) East v. Clarke, 1915, 33 O.L.R. 624, 23 D.L.R. 74. (fc) Finch v. Gilray, 1889, 16 O.A.R. 484; Brennan v. Finley, 1905, 9 O.L.R. 131. (0 Turley v. Williamson, 1865, 15 U.C.C.P. 538. (m) Pratt v. Hawkins, 1846, 15 M. & W. 399; Doyle v. Kauffman, 1877, 3 Q.B.D. 7, 340; Hewitt v. Barr, [1891] 1 Q.B. 98; Travato v. Dominion Canners, 1916, 35 O.L.R. 295, 26 D.L.R. 507. () Curtis v. Sheffield, 1882, 20 Ch.D. 398. 274. EFFECT OF BRINGING ACTION. 551 Titles Act (0) is not an action or proceeding that will prevent the statute from running (p). Where in Nova Scotia an action of ejectment was brought by the mortgagee to recover possession of the mortgaged lands, in which judgment was obtained and a writ of pos- session issued but not executed, it was held that these pro- ceedings interrupted the running of the statute as against the mortgagee seeking foreclosure (q). A question which on principle is debateable is whether an action for foreclosure in which possession is not claimed (r) is sufficient to interrupt the running of the statute. Strictly speaking, if the question were open, it would seem that a mortgagee who takes the legal title by his mortgage, must, like any other owner of land who is out of possession, bring an action for recovery of the land within the statutory period and cannot properly be said to have brought such an action when he seeks no remedy in rem but merely seeks to deprive the mortgagor of his equitable right to redeem (s). On the other hand in the case of an equitable mortgage forming a first charge on the legal estate it would be easier than in the case of a legal mortgagee to justify the view that a foreclosure action is an action to recover land, because in the case of a fore- closure action upon such equitable mortgage the plaintiff seeks not merely to deprive the mortgagor of his equitable right but also to acquire the legal title. It is obvious, however, that a legal mortgagee ought not to be in a worse position than (o) Now R.S.O. 1914, c. 123. (p) Laing v. Avery, 1867, 14 Gr. 33. v g) McKeen v. McKay, 1875, Russ. (N.S. Eq.) 121. (r) A claim for possession may now be joined with a claim for foreclosure in one action, and such a combination of claims is in accordance with the usual practice. See chapter 22, Action for Pos- session, 211. (s) See chapter 3, Legal Mortgage in Equity, 22, as to the na- ture of foreclosure. 552 CHAPTER XXVI. LIMITATION OF ACTIONS. an equitable mortgagee as regards the statute of limitations and that it would be unjust to deprive a mortgagee of the whole benefit of a final order of foreclosure obtained before his claim to the land is barred on the ground that he has not brought an action for possession within the statutory period. The question is concluded by the case of Pugh v. Heath (t) to the extent that it was there held that the effect of an order of foreclosure absolute obtained by a legal mortgagee is to vest the ownership of and beneficial title to the mort- gaged land for the first time in the mortgagee, so that an action, brought by the mortgagee within twenty years next after an order of foreclosure, to recover possession of the land was not barred by the statute of limitations (it), although more than twenty years had elapsed since the legal estate in the land had been conveyed to the mortgagee and since the last payment of principal or interest secured by the mort- gage (v). Where a third party went into possession after the making of a mortgage and remained in possession for more than the statutqry period without payment of rent or acknowledgment of title, it was held that he had not acquired a title by lapse of time as against the grantee under the sheriff's deed made under the direction of the court in foreclosure proceedings, the foreclosure having been completed less than the statutory (O 1882, 7 App. Cas. 235, 16 R.C. 389 (Earl Cairns, Lord O'Hagan, Lord Blackburn and Lord Watson), affirming Heath v. Pugh, 1881, 6 Q.B.D. 345, 16 R.C. 376 (Lord Selborne, L.C., Baggallay and Brett, L.JJ. reversing Lord Coleridge C.J. and Lindley J.). (u) 3 & 4 W. 4, c. 27 and 1 V. c. 28, under which the period was twenty years, whereas now it is twelve years in England and ten years in Ontario. (v) The order for foreclosure absolute is not, however, equiv- alent to a judgment for possession, and if the mortgagee has not claimed possession in the foreclosure action he must bring an action for possession. Wood v. Wheater, 1882, 22 Ch.D. 281. 274. EFFECT OF BRINGING ACTION. 553 period before the bringing of the action by the grantee against the person in possession (w). A mortgagee of land, instead of proceeding to foreclosure and sale, brought an action of ejectment against the mort- gagor, and recovered judgment on default of appearance and plea. The judgment was recorded but no further steps were taken upon it for a period of upwards of twenty years, either by revivor or issue of execution, or by taking possession of the land. It was held that the judgment could not be enforced after the expiration of twenty years from its date, and that the lapse of time was a bar to both the mortgage and the judg- ment (x). 275. Disabilities in case of action to recover land. In the English statute of 1883, 3 & 4 W. 4, c. 27, the gen- eral twenty-year period of limitation for entry or action was subject to an extension, in favour of a person who was under disability or someone claiming under him, for a further per- iod of twelve years after such person ceased to be under dis- abilitj 7 ' or died, whichever of those two events first happened (s. 16), provided that the entry must be made or the action brought within forty years of the time when the right first accrued (s. 17), and that additional time should not be al- lowed for the disabilities of successive claimants (s. 18). These provisions were superseded by ss. 3, 5 and 9 of the stat- ute of 1874 (which reduced the additional period allowed for disability from ten to six years and reduced the ultimate lim- itation of forty years to thirty years) , and the corresponding provisions in Ontario are R.S.O. 1914, c. 75, ss. 40, 41 and 42, as follows : 40. If at any time at which the right of any person to make an entry or distress, or to bring an action to recover any land or (10) Archibald v. Lawlor, 1902, 35 N.S.R. 48. (x) Re James Ling, 1908, 43 N.S.R. 60. 554 CHAPTER XXVI. LIMITATION OF ACTIONS. rent, first accrues, as herein mentioned, such person is under any of the disabilities hereinafter mentioned, that is to say, infancy, idiocy, lunacy or unsoundness of mind, such person, or the person, claiming through him, notwithstanding that the period of ten years or five years, as the case may be, hereinbefore limited has expired, may make an entry or distress, or bring an action, to recover sucb, land or rent at any time within five years next after the time at which the person to whom such right first accrued ceased to be under any such disability, or died, whichever of those two events first hap- pened. The .corresponding section of the English Act of 1874 (s. 3) specifies "coverture" as one of the disabilities provided for.. The Ontario statute was changed in this respect by 38 V. c. 16 (y). A disability arising after the right has accrued will not prevent the time from running (z). 41. No entry, distress, or action, shall be made or brought by any person who, at the time at which his right to make any entry or distress, or to bring an action, to recover any land or rent first accrued was under any of the disabilities hereinbefore mentioned, or by any person claiming through him, but within twenty years next after the time at which such right first accrued, although the per- son under disability at such time may have remained under one or more of such disabilities during the whole of such twenty years,, or although the term of five years from the time at which he ceased, to be under any such disability, or died, may not have expired. If a person is under one disability when his right first accrues and then falls under another disability before the removal of the first, his right may be enforced after the re- moval of the second, provided it be within the ultimate 1 imi- tation (a). 42. Where any person is under any of the disabilities herein- before mentioned, at. the time at which his right to make an entry or distress, or to bring an action to recover any land or rent first accrues, and departs this life without having ceased to be under any such disability, no time to make an entry or distress, or to bring (y) Hicks v. Williams, 1888, 15 O.K. 228. (z) Murray v. Watkins, 1890, 62 L.T. 796. (a) Burrows v. Ellison, 1871, L.R. 6 Ex. 128. 275. EFFECT OF DISABILITIES. 555 an action to recover such land or rent beyond the period of ten years next after the right of such person to make an entry or dis- tress, or to bring an action to recover such land or rent, first ac- crued or the period of five years next after the time at which such person died, shall be allowed by reason of any disability of any other person. The foregoing sections apply to an action for foreclosure because such an action is an action to recover land within s. 5 of the statute (&). 276. Extinguishment of right and title. Provision was made by the English statute of 1833, 3 & 4 W. 4, c. 27, s. 34, for the extinguishment of the right and title of the person who failed to make an entry or bring an action within the statutory period. The corresponding provision in Ontario is now contained in R.S.O. 1914, c. 75, s. 16, as fol- lows: 16. At the determination of the period limited by this Act to any person for making an entry or distress, or bringing any action, the right and title of such person to the land or rent, for the recov- ery whereof such entry, distress, or action respectively might have been made or brought within such period shall be extinguished. If no action is brought within the period limited by the act the right itself as well as the remedy is extinguished. The effect of the section is to vest the lands in the mortgagor in the same manner as if a reconveyance had been executed (c). The statute differs in this respect from the statute of James where- by the remedy only is barred (d). A mortgagee who has suffered the statute to run before he asserts his right of entry cannot, by afterwards getting pos- session of the property, revive his title to it, but he is in as (b) See 270, supra. As to an action for redemption, see 278. (c) Doe d. Jukes v. Sumner, 1845, 14 M. & W. 39; Doe d. Carter v. Barnard, 1849, 13 Q.B. 952; Kibble v. Fairthorne, [1895] 1 Ch. 219. (d) Gray v. Richford, 1878, 2 Can. S.C.R. 431 at p. 454. 556 CHAPTER XXVI. LIMITATION OF ACTIONS. a mere trespasser. The insolvency of the mortgagor and the appointment of an assignee in insolvency does not suspend the running of the statute so as to preserve the lien and security of the mortgagee on the land mortgaged (e). An acknowl- edgment given after the statutory period has lapsed is insuffi- cient -to revive the title (/) . The effect of the section was explained by Cozens-Hardy M.R. in the following terms (g) : "... my present view is that the phrase 'statutory con- veyance,' and so on, is a loose metaphorical term, and that the true view is this, that whenever you find a person in possession of prop- erty that possession is prima facie evidence of ownership in fee, and that prima facie evidence becomes absolute when once you have ex- tinguished the right of every other person to challenge it. That is the effect of s. 34 of the Real Property Limitation Act, and that explains how the person who has been in possession for more than the statutory period does get an absolute legal estate in the fee, and there is nobody who can challenge the presumption which his pos- session of the property gives." When the money due upon a mortgage has been paid to the mortgagee but no reconveyance has been executed, the mortgagor becomes from the date of such payment a tenant at will to the mortgagee and the legal estate of the mortgagee is extinguished by the adverse possession of the mortgagor for one year in addition to the statutory period (7i). A mortgagor's interest in the proceeds of sale of land held on trust for sale is an interest in "land" as defined by the Real Property Limitation Acts, and therefore after the lapse (e) Court v. Walsh, 1882, 1 O.K. 167, affirmed 9 O.A.R. 294; Doe d. Dunlop v. McNab, 1859, 5 U.C.R. 289. (/) See 272, supra. (g) In re Atkinson and Horsell's Contract, [1912] 2 Ch. 1, at p. 9. (7i) Sands v. Thompson, 1883, 22 Ch.D. 614. See R.S.O. 1914, c. 75, s. 6, sub-s. 7, in 271, supra. 276. EXTINGUISHMENT OF TITLE. 557 of the statutory period, in the absence of any payment or ac- knowledgment, the mortgagee's title is extinguished (i). D. ACTIONS FOR REDEMPTION. 277. Limitation if mortgagee in possession. The English Real Property Limitation Act of 1833, 3 & 4 W. 4, c. 27, contained a provision (s. 28) limiting the time within which an action for redemption might be brought against a mortgagee in possession of the mortgaged land. This provision was superseded by s. 7 of the statute of 1874, 37 & 38 V. c. 57, by which the limitation period was reduced from twenty to twelve years (j). The corresponding provision in Ontario is contained in R-S.O. 1914, c. 75, s. 20, as follows : 20. Where a mortgagee has obtained the possession or receipt of the 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 acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been given to the mortgagor or to 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 such acknowledgment, or the last of such acknowledgments, if more than one, was given. The opinion has been expressed that the general rule that time begins to run from the taking of possession is subject to an exception if the mortgagee takes possession before the mortgage is due. Fisher on Mortgages (k), citing Brown v. Cole (I), says, "Time will not run in the case of a common (i) In re Fox, Brooks v. Marston, [1913] 2 Ch. 75, following In re Hazeldine's Trusts, [1908] 1 Ch. 34, and Kirkland v. Peatfleld, [1903] 1 K.B. 756. (/) As to the Real Property Limitation Acts of 1833 and 1874, see 269, supra. As to the law prior to 1833, see 268, supra. (k) 6th ed., s. 1404. (0 1845, 14 Sim. 427, 18 R.C. 116. 558 CHAPTER XXVI. LIMITATION OP ACTIONS. mortgage until the day of redemption has arrived; for the mortgagor cannot redeem before that day" (m). The pro- position just quoted must, however, be accepted with caution. The decision in Brown v. Cole was to the effect that a mort- gagor is not entitled to redeem before the expiration of the time limited for payment of the mortgage debt (n). The de- duction that the statute will commence to run only from the same date appears to be based upon the assumption that the statutory bar can commence to run only from the time when the right arose, whereas the statute provides for the commence- ment from the time when the mortgagee obtained possession (o). If actual possession is once obtained by a mortgagee in assertion of his legal right of entry, it need not be maintained continuously for the statutory period (p), but possession ob- tained by the mortgagee after the lapse of the statutory per- iod does not cause his title to revive (q). In the case of a Welsh mortgage time does not begin to run against the mortgagor until the mortgage is satisfied (/*). It has been held that the time will run against a person entitled to the equity of redemption in remainder, although the mortgagee enters into possession and the statutory period elapses in the lifetime of the tenant for life (s). A prior mortgagee in possession acquires a title against (m) See also Wilson v. Walton, and Kirkdale Permanent Build- ing Society, 1903, 19 Times L.R. 408. (n) See chapter 25, Action for Redemption, 252. (o) In re Metropolis and Counties Permanent Investment Building Society, Gatfield's Case, [1911] 1 Ch. 698, at pp. 706-7. (p) Kay v. Wilson, 1877, 2 O.A.R. 133. (q) Court v. Walsh, 1882, 1 O.R. 167, 9 O.A.R. 294. (r) See chapter 1, Introductory, 2. (s) Harrison v. Hollins, 1812, 1 S. & St. 471. 277. MORTGAGEE IN POSSESSION. 559 both the mortgagor and subsequent mortgagees who are out of possession (t). 278. Time not extended by reason of disability. It was held by Jessel, M.R., in Kinsman v. Rouse, (u), that the time within which a mortgagor or any person claiming through him might sue for redemption was not to be extended by reason of his being under any disability. The disabilities provision (v) saves the right of any person "to bring an ac- tion to recover any land" if such person is under disability, but, as Jessel, M.R. pointed out, an action to redeem is not, properly speaking, "an action to recover land," and the sec- tion evidently refers to cases of ordinary ownership, where the rightful owner has been dispossessed. S. 20 (w) contains no qualification of the rights of the mortgagee as against the mort- gagor and there is no reason for extending the disabilities provision to the case of a mortgagor. The same result was reached in Forster v. Patterson (x) by Bacon, V.C., who laid emphasis on the order in which the sections are arranged. In the English statute the section re- lating to actions by a mortgagor follows the disabilities sec- tion, and Bacon, V. C., considered it clear that one is not at liberty to read into the special section relating to mortgagors a qualification derived from an earlier and more general sec- tion. In the English statute (37 & 38 V. c. 57, similar in arrangement to 3 & 4 W. 4, c. 27) the matter is made more plain because the disabilities section begins, "If at the time at which the right of any person to make an entry or distress, (t) Samuel Johnson & Sons v. Brock, [1907] 2 Ch. 533; cf. Wakefield and Barnsley Union Bank v. Yates, [1916] 1 Ch. 452. (u) 1881, 17 Ch.D. 104. (v) R.S.0. 1914, c. 75, s. 40. See 275, supra. (to) 277, supra. (x) 1881, 17 Ch.D. 132. 560 CHAPTER XXVI. LIMITATION OF ACTIONS. or to bring an action or suit to recover any land or rent shall have first accrued as aforesaid" thus referring back to the earlier sections. The Upper Canada statute 4 W. 4, c. 1, is similar in arrangement and wording to the English statutes. In C.S.U.C. 1859, c. 88, s. 45, the similar expression " as hereinbefore mentioned" is used, and in R.S.O. 1877, c. 108, s. 43 "as aforesaid, ' ' but inasmuch as the section relating to ac- tions by mortgagors precedes the disabilities section, the ap- plication of the latter section to the former is not necessarily excluded by the expressions quoted. In R.S.O. 1887, c. Ill, s. 43, and R.S.O. 1897, c. 133, s. 43, the reference is made quite specific by the expression "as in sections 4, 5 and 6 mention- ed," so that the application of the disabilities section to the redemption section is excluded, unless a suit for redemption should be held to be an " action to recover land, ' ' contrary to the opinion of Jessel, M.R., in Kinsman v. Rouse, supra. In 10 E. 7, c. 34, s. 40, and R-S.O. 1914, c. 75, s. 40, the more gen- eral expression "as herein mentioned" is substituted for the specific reference to the earlier sections, but it has been held that no change in meaning was intended (t/). In Faulds v. Harper a divisional court held that the dis- abilities section (RJ3.0. 1877, c. 108, s. 43) applied to a suit for redemption (2). This decision was, however, reversed by the Court of Appeal (a). On appeal to the Supreme Court of Canada the judgment of the Court of Appeal was in turn (]/) Smith v. Darling, 1917, 55 Can. S.C.R. 82, 36 D.L.R. 1, affirm- ing 36 O.L.R. 587, 32 D.L.R. 307 (z) 1883, 2 O.R. 405, the case of Hall v. Caldwell, 1861, 7 U.C.L. J.O1S. 42, 8 U.C.L. J.O.S. 93, in the Court of Error and Appeal being followed in preference to Kinsman v. Rouse, supra, and Forster v. Patterson, supra. (a) 1884, 9 O.A.R. 537. See especially the remarks of Patterson,. J.A., at pp. 554 ff. with regard to the case of Hall v. Caldwell, and with regard to the effect of the changes of wording made in the suc- cessive revisions. 278. NO EXTENSION FOR DISABILITY. 561 reversed (&), the decision being based chiefly on the ground that the action was virtually to impeach a purchase by a trustee for sale and that therefore the statute of limitations had no application. Strong, J. said (c) : "I think it well, however, to add that if I had to choose between the decisions in Caldwell v. Hall and those in Kinsman v. Rouse and Forster v. Patterson, I should certainly have agreed with the learned judges of the Divisional Court; for the reason that since the two cases in 17 Chancery Division, were decided, the House of Lords has held in Pugh v. Heath, 7 App. Cas. 235, that a foreclosure suit is an action for the recovery of land (d). This being so it follows a fortiori that a redemption suit is also an action or suit for the recovery of land. And it is impossible, without doing violence to the words of the statute, to hold that the saving of disabilities does not apply to any action or suit, as well in equity as at law, for the recovery of land." Whether an action for redemption is or is not an action to recover land, the dictum of Strong, J. that the disabilities clauses of the statute apply to a suit for redemption was over- ruled, and the decision of the Court of Appeal in Faulds v. Harper, was followed, in the case of Smith v. Darling (e). 279. Nature of possession of mortgagee, Time will not run against the mortgagor so long as the possession of the mortgagee may be referred to another title and is not adverse. Thus, a person to whom property was mortgaged by the tenant for life and remainderman, after hav- ing been in possession for six years without any acknowledg- ment of the mortgagor's title, purchased the interest of the tenant for life, and then continued in possession for twenty years. It was held that such possession was not adverse dur- ing the existence of the life estate so purchased, and that the (b) 1886, 11 Can. S.C.R. 639. (c) Ibid., at p. 655. (d) As to the case of Pugh v Heath, see 274, supra. (e) 1917, 55 Can. S.C.R. 82, 36 D.L.R. 1, affirming 36 O.L.R. 587, 32 D.L.R. 307. 562 CHAPTER XXVI. LIMITATION OF ACTIONS. statute 3 & 4 W. 4, c. 27, s. 28 (/) was not, therefore, a bar to a suit for redemption by the remainderman or reversioner (g). In Faulds v. Harper (7i) an action for foreclosure had been brought and a decree had been made for a sale. The lands were sold pursuant to the decree and were purchased by one Harper, who acted for and in collusion with the mortgagee. Harper then conveyed to the mortgagee, who took possession and thenceforth dealt Avith the lands as absolute owner. In an action to redeem it was held that as the mortgagee had been in possession not as mortgagee but as purchaser, the statute of limitations did not apply. The action was virtually one to impeach a purchase by a trustee for sale, to which no statute of limitations was applicable. .Similarly if a mortgagee sells under a power of sale accord- ing to the terms of which he is an express trustee of the sur- plus, the statute of limitations does not apply to an action by the mortgagor to make the mortgagee account for the sur- plus (*'). A security for money lent was expressed in the form of a conveyance to the lender on trust to sell. He entered into possession and remained in possession for more than twenty years. His devisees in trust agreed to sell the mortgaged estate for a sum exceeding the amount owing for principal, interest and costs, and conveyed it to the purchaser by a deed in which the trust for sale was recited. It was held that the security was simply a mortgage, that the statute of limitations applied, that the devisees in trust sold as owners in fee and (/) See now R.S.O. 1914, c. 75, s. 20, quoted in 277, supra. (g) Hyde v. Dalloway, 1843, 2 Hare 528. See also Raffety v. King, 1836, 1 Keen 601. (7i) 1886, 11 Can. S.C.R. 639. See the cases cited by Strong, J. at pp. 647 ff. (i) See 261, supra. , 279. NATURE OF POSSESSION OF MORTGAGEE. 563 that the mortgagors had no right to the surplus of th.3 pur- chase money 0'). If, moreover, the mortgagee conveys the lands to a pur- chaser who goes into possession, the mortgagee may set up the possession of the purchaser in addition to his own possession, if any, as mortgagee, so as to bar the mortgagor's claim (&) The possession required by the statute must be the posses- sion of one person, or of several persons claiming one from or under another by conveyance, will or descent (I). Where the solicitor of a mortgagor paid off the mortgage for his own benefit but did not take an assignment of the mortgage, it was held that his possession was the possession of his client and that time did not run against the client (m). The words "possession or receipt of the profits" in R.S.O. 1914, c. 75, s. 20 (n) seem to Include the case of the mortgagee receiving rent from a tenant in possession ; receipt of such rent by a mortgagee for the statutory period will, it seems, bar the mortgagor's right to redeem (0). Possession of lands must be considered in every case with reference to its peculiar circumstances, the character and value of the property, the suitable and natural mode of using it, and the course of conduct which its proprietor might rea- sonably be expected to follow with due regard to his own S. interest (p). (;) In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284. (fc) Bright v. McMurray, 1882, 1 O.R. 172. (0 Doe d. Carter v. Barnard, 1849, 13 Q.B. 945, at p. 952; Bed- ford v. Boulton, 1878, 25 Gr. 561. (m) Ward v. Carttar, 1865, L.R. 1 Eq. 29. (n) See 277, supra. (o) Ward v. Carttar, 1865, L.R. 1- Eq. 29; Markwick v. Harding- ham, 1880, 15 Ch.D. 339; 19 Halsbury, Laws of England, p. 149, note (1). (p) Lord Advocate v. Lord Lovat, 1886, 5 App. Cas. 273, at p. 288; Kirby v. Cowderoy, [1912] A.C. 599; Martin v. Evans, 1917, 39 O.L.R. 479, 37 D.L.R. 376. 564 CHAPTER XXVI. LIMITATION OF ACTIONS. Under a deed of conveyance, intended to be security only, of wild land in British Columbia without value, the grantee for over twenty years (q) before the grantor's suit for re- demption performed the only act of possession of which the land appeared to be susceptible, namely, with the grantor's acquiescence he paid all the taxes upon it, and the grantor made no payment of principal or interest and had washed his hands of all connection with the property. It was held that the suit for redemption was barred (r). It has been held that the possession of the mortgagee under the statute means actual adverse possession and that a mere constructive possession of vacant lands by reason of the de- fault of the mortgagor will not operate to bar the mortgagor's right to redeem (s). 280. Possession of part of mortgaged lands. The rule which prevailed prior to 3 & 4 W. 4, c. 27, that no lapse of time barred the right of the mortgagor to redeem the whole of the mortgaged lands if he held possession of part (/) was abolished by s. 28 of the statute (u). Hence it has been held that where a mortgagee had been in possession of part of the lands for more than 20 years, the right of the (q) The statute in question was R.S.B.C. 1897, c. 123, s. 40, similar in terms to R.S.O. 1914, c. 75, s. 20, quoted in 277, except that the period of limitation in the former statute is 20 years, that in the latter 10 years. (r) Kirby v. Cowderoy, supra; sed cf. McDonald v. McDonell, 1864, 2 U.C.E. & A. 393. (*) Campbell v. Imperial Loan Co., 1908, 18 M.R. 144, overruling Rutherford v. Mitchell, 1904, 15 M.R. 390; Creamer v. Gooderham, 1914, 7 S.L.R. 173, 17 D.L.R. 235. If, however, mortgaged lands are left vacant after default, constructive possession is in the mortgagee so as to prevent his right to foreclose from being barred by lapse of time. See 270, supra. (t) Rakestraw v. Brewer, 1728, Sel. Cas. Ch. 55, 2 P. Wms. 511. (u) See now R.S.O. 1914, c. 75, s. 20, in 277, supra. 280. POSSESSION OF PART OF LANDS. 565 mortgagor to redeem that part was barred although he held possession of the remainder of the lands (v). On the other hand, if a person has only a partial interest in the equity of redemption, for instance, as tenant, he has a right to pay the whole mortgage debt and receive a convey- ance of the mortgaged lands, subject to the rights of redemp- tion of other persons interested in the equity (w). This prin- ciple that the equity of redemption is an entirety which can- not be redeemed piecemeal or proportionately has been held to apply even where the person redeeming is entitled only to a share in the equity of redemption and the other persons in- terested have been barred by the statute of limitations '#). 281. Acknowledgment of title &y mortgagee. In England prior to the passing of the statute 3 & 4 W. 4, c. 27, a slight act or admission, even oral, on the part of the mortgagee, constituted a sufficient acknowledgment of the mortgagor's title to preserve his right tq redeem. That statute, however, required, that the acknowledgment should be in writ- ing signed by the mortgagee, or the person claiming through him. The corresponding provision in Ontario is R.S.O. 1914, c. 75, s. 20, by which the mortgagor's action is barred at the end of ten years after the time at which the mortgagee ob- tained possession (y}, unless in the meantime an acknowledgment in writing of the title of the mortgagor, or of his right to redemption, has been given to the mortgagor or to 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 action shall be brought, but within ten years next after the time at which such acknowledg- ment, or the last of such acknowledgments, if more than one, was given. (v) Kinsman v. Rouse, 1881, 17 Ch.D. 104. (w) Martin v. Miles, 1884, 5 O.R. at p. 416. (a?) Faulds v. Harper, 1833, 2 O.R. 405, at p. 411, 11 Can. S.C.R. 639, at pp. 645, 646. (V) See 277, supra. 566 CHAPTER XXVI. LIMITATION OF ACTIONS. S. 20 requires that the acknowledgment should be made to the mortgagor or to some person claiming his estate, or to the agent of such mortgagor or person (2). If a mortgagor is a party to an assignment of the mortgage, this may be a sufficient acknowledgement of his title by the mortgagee (a). But a mere recital of the mortgage and an assignment of it, subject to the equity of 'redemption, by a deed to which the mortgagor or a person claiming his estate is not a party is not sufficient. The assignee is a person claim- ing, not the mortgagor's estate, but the mortgagee's estate (&). If a mortgagee has entered into possession, accounts of his receipt of rent are not sufficient acknowledgment unless they are signed by him and kept for or communicated to the mort- gagor or his agent (c). A letter written by the mortgagee to the mortgagor intimating that the former is willing to give an account is a sufficient acknowledgment (d). But a mere ad- mission by the mortgagee that he holds under a mortgage title is not sufficient (e). In order that the person to whom an acknowledgment is made should be the agent of the mortgagor, it is sufficient if he has acted or has been treated as such by the person making the acknowledgment (/). On the other hand, an acknowl- (z) In re Metropolis, etc., Society, Gatfield's Case, [1911] 1 Ch. 698, at p. 705. (a) Batchelor v. Middleton, 1848, 6 Hare 75. (6) Lucas v. Dennison, 1843, 13 Sim. 584. See also Markwick v. Hardingham, 1880, 15 Ch.D. 339. (c) In Baker v. Welton, 1845, 14 Sim. 426, this question was raised but not decided; see Sugden, Statutes relating to Real Prop- erty, 2nd ed. 117; In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284; 19 Halsbury, Laws of England, 151. (d) Richardson v. Younge, 1870, L.R. 10 Eq. 275, L.R. 6 Ch. 478. (e) Thompson v. Bowyer, 1863, 9 Jur. N.S. 863. (/) Trulock v. Robey, 1841, 12 Sim. 402; Halsbury, op cit., 151; cf. In re Metropolis, etc., Society, Gatfield's Case, [1911] 1 Ch. 698 at p. 705. 281. ACKNOWLEDGMENT BY MORTGAGEE. 567 edgment by the agent of the mortgagee is not sufficient (g), but the mortgagee's acknowledgement will bind his lessee (h). It has been said that an acknowledgment given by the mortgagee after the expiration of the statutory period is suffi- cient (i), but this construction appears to be unjustified (j). The words "in the meantime" in s. 20 seem to exclude an acknowledgment given after the period has expired. Under s. 24, relating to the right to recover money out of the land (k), an acknowledgment given after the expiration of the statutory period would appear to be too late, that section also contain- ing the words ' ' in the meantime. ' ' A similar result has been reached under s. 14, which does not contain the words "in the meantime " ( I) . The case of an acknowledgment given to one of several mortgagors or by one of several mortgagees was provided for by s. 28 of the English statute of 1833, 3 & 4 W. 4, c. 27. The corresponding provisions in Ontario are now contained in R.S.O. 1914, c. 75, ss. 21 and 22, as follows : 21. Where there are more mortgagors than one, or more per- sons than one claiming through the mortgagor or mortgagors, such acknowledgment if given to any of such mortgagors or persons, or his or their agent, shall be as effectual as if the same had been given to all such mortgagors or persons. 22. Where there are more mortgagees than one, or more per- sons than one claiming the estate or interest .of the mortgagee or mortgagees, such acknowledgment, signed by one or more of such (SO Richardson v. Younge, 1871, L.R. 6 Ch. 478, at p. 480. (7i) Ball v. Lord Riversdale, 1816, Beatty 550. (i) Stanfield v. Hobson, 1852, 3 DeG. M. & G. 620, affirming 16 Beav. 236. (/) Markwick v. Hardingham, 1880, 15 Ch.D. 339; Sanders v. Sanders, 1881, 19 Ch.D. 373, at p. 379; Shaw v. Coulter, 1905, 11 O.L.R. 630; Rutherford v. Mitchell, 1904, 15 M.R. 390. (fc) See 265, supra. (0 See 272, infra. The reason in the case of s. 14 is that by s. 16 the right and title to the land is extinguished after the expir- ation of the statutory period. 568 CHAPTER XXVI. LIMITATION OF ACTIONS. mortgagees or persons, shall be effectual only as against the person or persons so signing, and the person or persons claiming any part of the mortgage money or land or rent by, from or under him, or them, and any person or persons entitled to any estate or estates, interest or interests, to take effect after or in defeasance of his or their estate or estates, interest or interests, and shall not operate to give to the mortgagor or mortgagors a right to redeem the mort- gage as against the person or persons entitled to any other undivided or divided part of the money or land or rent; and where suQh of the mortgagees or persons as have given such acknowledgment are en- titled to a divided part of the land or rent comprised in the mortgage or some estate or interest therein, and not to any ascertained part of the mortgage money, the mortgagor or mortgagors shall be en- titled to redeem the same divided part of -the land or rent on pay- ment, with interest, of the part of the mortgage money which bears the same proportion to the whole of the mortgage money as the value of such divided part of the land or rent bears to the value of the whole of the land or rent comprised in the mortgage. The provision that the acknowledgment of one of several mortgagees "shall be effectual only against the party signing the acknowledgment" is directed to the case of several mort- gagees where an account taken against one will bind his in- terest but not the interest of any other person. The statute has no application to the case of a mortgage to several per- sons jointly as trustees. In the latter case there must be an acknowledgment by all (m). B. THE LAND TITLES ACTS. 282. Possession adverse to registered title. It is provided in Ontario by the Land Titles Act, R.S.O. 1914, c. 126, s. 29, as follows : 29. (1) A title to any land adverse to or in derogation of the title of the registered owner shall not be acquired by any length of possession. (2) This section shall not prejudice, as against any person reg- istered as first owner of land with a possessory title only (n), any ad- verse claim in respect of length of possession of any other person who was in possession of the land at the time when the registration of such first owner took place. (m) Richardson v. Younge, 1871, L.R. 6 Ch. 478. () An owner with a possessory title means a person who is registered as owner subject to any estate, right or interest adverse 282. THE LAND TITLES ACTS. 569 It is provided in Manitoba by the Real Property Act, R,S.M. 1913, c. 171, ss. 82, 83 and 117, as follows : 82. Every certificate of title shall be void as against the title of any person adversely in actual occupation of and rightly entitled to the land at the time when such land was brought under the new system, and who continues in such occupation. 83. After land has been brought under this Act no title adverse or in derogation to the title of the registered owner shall be acquired by any length of possession merely. 117. In so far as any limitation is imposed by The Real Prop- erty Limitation Act on the rights, remedies or powers under mort- gages, the same shall be held not to apply to mortgagees or encum- brancees in mortgages or encumbrances heretofore or hereafter made under this Act, except as to liability under covenants for payment of any moneys secured thereby. This section shall be retroactive (o). It is provided in Saskatchewan by the Land Titles Act, 1917, s. 61, as follows : 61. (1) Every certificate of title shall be void as against the title of any person adversely in occupation of and rightly entitled to the land at the time when such land was brought under this Act. (2) After land has been brought under this Act no title thereto adverse to or in derogation of the registered owner shall be acquired by possession: Provided, however, that nothing contained in this section shall operate to affect prejudicially any right or interest in land acquired prior to the nineteenth day of December, 1913 (p). It is provided in British Columbia by the Land Registry Act, R.S.B.C. 1911, c. 127, s. 22, as follows : 22. (2) Any certificate of indefeasible title issued under the provisions of this Act shall be void as against the title of any person adversely in actual possession of and rightly entitled to the heredita- ments included in such certificate at the time of the application upon which such certificate was granted under this Act. to or in derogation of his title and subsisting or capable of arising at the time of the registration of such owner (s. 12), such owner being in possession or the actual possession being in accordance with such owner's alleged title (r. 3, Land Titles Act). (o) The original of this section was 7 & 8 E. 7, c. 52, s. 6. (p) The original of this section was the statute 1913, c. 30, s. 6. 570 CHAPTER XXV'l. LIMITATION OF ACTIONS. (3) After the issuance of a certificate of indefeasible title no title adverse or in derogation to the title of the registered owner shall be acquired by any length of possession merely. In any of the provinces a registered title may be founded upon a title by possession, that is to say, the evidence of title submitted by a person applying to have the land brought under the land titles system may be merely evidence of actual, visible, continuous and undisturbed possession for a sufficient period under the statute of limitations (g). In Manitoba, . Saskatchewan and British Columbia, the rights of a person who is in actual possession and who has acquired a title by possession (r) when an application is made by another person to have the land brought under the system are protected, under the statutes above mentioned, even in the event of a certificate of title being granted to the applicant. There is no similar provision in Alberta or the Northwest Territories, but in view of the nature of the evidence required on the application it is difficult to conceive that the applicant would, except by fraud, be successful in getting himself registered as owner without an opportunity being given to the occupant to assert his rights (s) . In Ontario, where likewise there is no provision expressly protecting the actual occupant in the case of an application by another person for registration as owner with an absolute title, the applicant would have the same difficulty in estab- lishing his right to be registered in the event of there being an adverse claimant. in actual possession (). In Manitoba (subject to s. 82) and in Saskatchewan (sub- ject to s. 61, sub-s. 1) a certificate of title affords complete pro- tection against a person claiming an adverse title by posses- (<7) Re Anderton, 1908, 8 W.L.R. 319; Bradshaw v. Patterson, 1911, 4 S.L.R. 208; Thorn, The Canadian Torrens System, p. 141. (r) As Thorn, op. cit., p. 142, points out, the statutory period must have completely run, otherwise the actual occupant could not properly be described as "rightly entitled." (s) Thorn, op. cit., p. 142. (t) See rr. 4, 5, Land Titles Act. 282. THE LAND TITLES ACTS. 571 sion, and under s. 83 of the Manitoba statute it has been held that a mortgagee cannot by length of possession acquire a title as against the mortgagor, the registered owner of the land (u)'. In Ontario the registration of a person as owner with an absolute title and in British Columbia (subject to s. 22, sub-s. 2) the registration of a person as owner with an indefeasible title affords the registered owner similar protec- tion. In Alberta and the Northwest Territories on the other hand the title of the registered owner is subject to be defeated by the adverse possession of another person, this case being an instance of the general rule that a certificate of title is not intended to be a continuing charter of title in favour of the registered owner but only so far as he is concerned, a certificate that upon its date he was the registered owner (v). (u) Smith vl National Trust Co., 1912, 45 Can. S.C.R. 618, 1 D.L.R. 698, affirming 20 M.R. 522. (v) Thorn, op. cit., p. 143; Harris v. Keith, 1911, 3 A.L.R. 222. PART VII. MORTGAGE ACCOUNTS. CHAPTER XXVII. I ACCOUNTING BETWEEN MORTGAGOR AND MORTGAGEE. 291. Right of mortgagor to an account, p. 573. 292. Taking of mortgage account, p. 574. 293. Items included in the account, p. 575. 294. Accounting by mortgagor in possession, p. 577. 295. Waste by mortgagor in possession, p. 577. 291. Right of mortgagor to an account. Proceedings for foreclosure or sale or for redemption in- volve the taking of an account as between the mortgagor and the mortgagee. The form of endorsement on a writ of summons in an ac- tion for redemption includes a claim to have an account taken of what, if anything, is due on the mortgage, and the form of judgment for redemption directs that all necessary enquiries be made, accounts taken, costs taxed, etc. (a). In an action for foreclosure or sale, if there is a reference as to subsequent encumbrancers the judgment directs that all necessary enquiries be made, accounts taken, costs taxed, etc., and if there is no reference the account is taken by the officer signing judgment. If the defendant disputes the amount of the plaintiff's claim he is entitled to four days notice of the taking of the account (b). If the mortgagee has sold the mortgaged property under his power of sale, whether he has been in possession or not, (a) See chapter 25, Action for Redemption, 258. (6) See chapter 24, Action for Foreclosure or Sale, 236. 574 CHAPTER XXVII. ACCOUNTING BETWEEN PARTIES. the mortgagor may bring an action for an account and to re- cover the surplus in the hands of the mortgagor (c). 292. Taking of mortgage account. The proceedings on a reference are governed in Ontario by rules 402 to 459. Some of the rules especially relating to the taking of accounts are as follows (d) : 411. The master may cause parties to be examined, and to pro- duce books, papers and writings, as he thinks fit, and may deter- mine what books, papers and writings are to be produced, and when and how long they are to be left in his office; or in case he does not deem it necessary that such books and papers or writings should be left or deposited in his office, he may give directions for the inspection thereof by the parties requiring the same, at such time and in such manner as he deems expedient. 417. Where an account is to be taken, the accounting party, un- less the master otherwise directs, shall bring in the same in debit and credit form, verified by affidavit. The items on each side of the account shall be numbered consecutively, and the account shall be referred to by the affidavit as an exhibit, and shall not be annexed thereto. 418. The master may direct that in taking accounts, the books of account, in which the accounts required to be taken have been kept, or any of them, be taken as prima facie evidence of the truth of the matters therein contained. 419. Before proceeding to the hearing a.nd determining of a ref- erence, the master may appoint a day for the purpose of entering into the accounts and inquiries, and may direct the production and in- spection of vouchers, and if deemed proper the cross-examination of the accounting party on his affidavit, with a view to ascertaining what is admitted and what is contested between the parties. The mortgagor may "surcharge" and "falsify" (e). These terms have been denned as follows (/) : (c) Beatty v. O'Connor, 1884, 5 O.R. 731, 747; Reddick v. Traders Bank of Canada, 1892, 22 O.R. 449; Shepard v. Jones, 1882, 21 Ch.D 469. (d) See also the rules relating to mortgage actions set out in chapter 24, Action for Foreclosure or Sale, 239 and 241. (e) In re Webb, Lambert v. Still, [1894] 1 Ch. 73. (/) Pitt v. Cholmondeley, 1754, 2 Ves. Sen. 565. 292. TAKING OF MORTGAGE ACCOUNT. 575 "If any of the parties can show an omission for which credit ought to be given, that is a surcharge; if anything is inserted that is a wrong charge he is at liberty to show it, and that is a falsifica- tion." It is provided by rule 420 as follows : 420. A party seeking to charge an accounting party beyond what he has in his account admitted to have received, shall give notice thereof to the accounting party, stating as far as he is able the amount sought to be charged and the particulars thereof in a short and succinct manner. The master may direct any party who seeks to falsify an account to deliver particulars of the item objected to. The particulars shall refer to the item by number. 293. Items included in the account. The ordinary items of the account where the mortgagee has not taken possession (g) are the principal, the interest and the costs, and in addition there may be items of expense in- curred by the mortgagee and chargeable to the mortgagor un- der the terms of the mortgage or by statute (7i). The items of interest and costs are discussed in subsequent chapters (i). On the taking of the account in respect of a mortgage to se- cure repayment of a loan, if the making of the loan is dis- puted the mortgagee must prove that the money was in fact paid to the mortgagor or to some other person upon the order of the mortgagor (j). The mortgagee is, however, entitled to (gr) As to accounting by the mortgagor in possession, see 294, infra. (h) E.g., insurance premiums. See chapter 34, Fire Insurance, 372. Apart from power conferred by the terms of the mortgage or statute, the mortgagee cannot charge such premiums in his accounts, except when he is mortgagee in possession, and then the premiums fall under "just allowances." Dobson v. Land, 1850, 8 Hare 216; Bel- lamy v. Brickenden, 1861, 2 John & H. 137; Scholefield v. Lockwood, 1863, 11 W.R. 555; 21 Halsbury, Laws of England, p. 241. (i) See chapter 29, Interest, and chapter 30, Costs. (/) See, e.g., Black v. Hiebert, 1907, 38 Can. S.C.R. 557, in which a mortgage was declared fraudulent as against the mortgagor, the money having been advanced by the mortgagee, without the express authority of the mortgagor, to a lumber company which was supply- ing material to the contractors for a building on the mortgaged land. 576 CHAPTER XXVII. ACCOUNTING BETWEEN PARTIES. the whole principal sum stated in the mortgage to have been advanced notwithstanding that at the time of the advance part of such sum was in fact deducted or withheld by way of bonus or commission or that the mortgagee obtained some other collateral advantage for which he might legitimately stipulate (k). A mortgagee has a lien for moneys paid to redeem the mortgaged lands sold for taxes (I), but a mortgagee who has been a party to a breach of trust in taking the mortgage has no lien for money paid by him for taxes on the mortgaged lands or for money paid to redeem them from a sale for taxes, he being in the same position as a stranger paying taxes (m). If the mortgagee has taken possession various additional items may enter into the account. The mortgagee may be entitled to credit for money paid by him for repairs and other purposes, and he will be chargeable with rents and profits which he has received or which he ought to have received (n). It is provided in Ontario by rule 410 as follows (0) : 410. Under an order of reference, the master shall have power: (a) To take accounts with rests or otherwise; (b) To take account of rents and profits received or which, but for wilful neglect or default, might have been re- ceived; (c) To set occupation rent; (d) To take into account necessary repairs, and lasting im- provements, and costs and other expenses pfbperly incur- red otherwise, or claimed to be so; (e) To make all just allowances; (f) To report special circumstances; (fc) As to a stipulation for a collateral advantage, see chapter 3, Legal Mortgage in Equity, 26. (0 Wiley v. Ledyard, 1883, 10 O.P.R. 182. (m) Graham v. British Canada Loan and Investment Co., 1898, 12 M.R. 244; cf. In re Leslie, Leslie v. French, 1883, 23 Ch.D. 552; Falcke v. Scottish Imperial Insurance Co., 1886, 34 Ch.D. 234. (n) See chapter 28, Mortgagee in Possession. (o) It will generally be in the case of a mortgagee in possession that the provisions of this rule will be applied, and they .will be dis- cussed in chapter 28, 303. See also chapter 30, Costs, 321. 293. ITEMS INCLUDED IN THE ACCOUNT. 577 (g) And generally, in taking the accounts, to Inquire, adjudge, and report as to all matters relating thereto, as fully as if the same had been specifically referred. 294. Accounting by mortgagor in possession. So long as the mortgagor or any person holding through or under him remains in possession, either by virtue of a pro- vision in the mortgage authorizing him to do so until default or because the mortgagee refrains from disturbing his posses- sion (p), he is entitled to the rents and profits of the land, and he is not accountable to the mortgagee for rents and pro- fits received prior to the time when the mortgagee takes pos- session, even though the security is deficient (q). Thus, a mortgage of a farm and farming stock will not prevent the mortgagor from selling the stock in the ordinary course of business without accounting for the proceeds (r), and a mortgagor is entitled even after default and before entry of the mortgagee to remove growing crops (s). On the other hand the mortgagor is not entitled to credit for any money spent by him on the mortgaged land. Im- provements made by him are simply improvements on his own % land subject to the mortgage, not improvements made on land under the mistaken belief that the land is his (<). 295. Waste by mortgagor in possession. A mortgagor in possession of the mortgaged property is not liable to the mortgagor for allowing the property to de- (p) As to the right of possession as between mortgagor and mortgagee, see chapter 22, Action for Possession, 212. As to the rights of a mortgagor in possession, cf. 215. (9) Ex parte Wilson, 1813, 2 Ves. & B. 252, 18 R.C. 382; York- shire Banking Co. v. Mullan, 1887, 35 Ch.D. 125; Wafer v. Taylor, 1852, 9 U.C.R. 609. (r) National Mercantile Bank v. Hampson, 1880, 5 Q.B.D. 177. (s) Ex parte National Mercantile Bank, In re Phillips, 1880, 16 Ch.D. 104. (O Hislop v. Joss, 1901, 3 O.L.R. 281. 578 CHAPTER XXVII. ACCOUNTING BETWEEN PARTIES. teriorate, but he must not commit any act which is destructive or permanently injurious thereto, if the security is insuffi- cient or will be rendered insufficient by such act (u). The mortgagor is not entitled to take part of the inheri- tance by cutting timber, opening mines, etc., but as far as the common law is concerned the only remedy of the mort- gagee is. to take possession. Equity has improved and ex- tended the mortgagee's remedy but grants the remedy only where the effect of the mortgagor's acts is to imperil the se- curity. It will not interfere unless the security is scanty or will be rendered scanty by the waste in question, and even if the security is scanty it will not interfere if the waste is mel- iorating waste, that is, of a kind which increases the value of the property (v). If the person in possession of the mortgaged land commits waste so as to imperil the security, as by cutting standing tim- ber, he is liable to account therefor to the mortgagee, and where there is no evidence of bad faith the injury actually sustained by such waste is the measure of damages (w). The liability to account is not usually important in the case of the mortgagor himself as he is almost always personally liable for the whole mortgage debt, but the mortgagee has also the right of compelling a purchaser of the land or subsequent mort- gagee in possession to account for waste committed by him (x) or of obtaining payment from the purchaser of timber sold and removed (y). The registration of a mortgage con- () Indian Transfer of Property Act, 1882, s. 66, in Appendix III. to Strahan, Law of Mortgages, 2nd ed., pp. 223-4. (v) Strahan, Law of Mortgages, 2nd ed., pp. 15, 45-46; King v. Smith, 1843, 2 Hare 239, 18 R.C. 98; Wafer v. Taylor, 1852, 9 U.C.R. 609; Russ v. Mills, 1859, 7 Gr. 145; cf. Hixon v. Reaveley, 1904, 9 O.L.R. 6. (to) McLean v. Burton, 1876, 24 Gr. 134. (a?) McLeod v. Avey, 1888, 16 O.R. 365. (y) Scott v. Vosburg, 1880, 8 O.P.R. 336. 295. WASTE BY MORTGAGOR IN POSSESSION. 579 stitutes notice of the mortgage to a subsequent purchaser of timber standing on land included in the mortgage (2). The mortgagee is entitled to an injunction restraining the person in possession from committing waste which may im- peril the security (a). Such an injunction may also be granted at the suit of an execution creditor (ft). (z) McLean v. Burton, supra. (a) Fan-ant v. Lovell, 1750, 3 Atk. 723; King v. Smith, supra; McLean v. Burton, supra; McLeod v. Avey, supra. (6) Wason v. Carpenter, 1867, 13 Gr. 329. CHAPTER XXVIII. MORTGAGEE IN POSSESSION. 301. When mortgagee is deemed to be in possession, p. 580. 302. Rights of mortgagee in possession, p. 582. 303. Right to reimbursement for expenses incurred, p. 584. 304. Obligations of mortgagee in possession, p. 588. 305. Liability for occupation rent, p. 589. 306. Liability for rents and profits, p. 591. 307. Liability for waste or deterioration, p. 594. 308. Manner of taking accounts, p. 595. 301. When mortgagee is deemed to be in possession. A mortgagee takes possession (a) when he deprives the mortgagor of the control and management of the mortgaged property. If the actual occupant is the mortgagor or a ten- ant under a lease from the mortgagor made after the mort- gage, the mortgagee, if he is entitled to possession, may take possession by ejecting the occupant (&). If the occupant is a tenant under a lease which is paramount to the mortgage, the mortgagee may, if he is entitled to possession as between him- self and the mortgagor, take possession by requiring the ten- ant to pay the rents and profits to the mortgagee or his agent instead of paying them to the mortgagor (c). The mere fact that the mortgagee intercepts the. rents and profits after they have been paid by the tenants to the mortgagor's agent does not take the mortgaged property out of the mortgagor's con- (a) As to the right to possession as between mortgagor and mortgagee, see chapter 22, Action for Possession, 212. (6) See chapter 15, Lessee of Mortgaged Land, 141. (c) Noyes v. Pollock, 1884, 32 Ch.D. 53, at p. 61. See chapter 15, 142, as to the right to require payment of rent by a tenant under a paramount lease. 301. WHAT CONSTITUTES TAKING POSSESSION. 581 trol. "In order to hold that a mortgagee not in actual pos- session is in receipt of the rents and profits, in my opinion, it ought to be shown not only that- he gets the amount of the rents paid by the tenants, even although he gets their cheques or their cash, but that he receives it in such a way that it can be properly said that he has taken upon himself to intercept the power of the mortgagor to manage his estate, and has himself so managed and received the rents as part of the man- agement of the estate." (d) If a person, though in fact a mortgagee, enters into pos- session of the rents and profits in another character, he can- not be charged as a mortgagee in possession. His receipt of the rents and profits in the particular character of mortgagee in possession must be distinctly established. A person who purchases a property from a mortgagee and goes into posses- sion, supposing himself to be the owner, if it afterwards ap- pears that he is not validly clothed with that character, but only holds a lien on the property in virtue of the money ad- vanced by him on the supposed purchase, cannot therefore be so treated as to make him liable to render accounts as an or- dinary mortgagee in possession. It is essential to the creation of such liability that he should have known that he was in possession as mortgagee (e). So, where a mortgagee acted as owner after final order of foreclosure regularly obtained, and the foreclosure was after- wards opened by the court in the exercise of its equitable jur- isdiction, it was held that prior to the opening of the fore- (d) Noyes v. Pollock, 1884, 32 Ch.D. 53, at pp. 61, 64. The ap- pointment of a receiver by a mortgagee otherwise than under stat- utory or express power to appoint a receiver will constitute the mort- gagee a mortgagee in possession. See chapter 32, Appointment of Receiver, 354. (e) Parkinson v. Hanbury, 1867, L.R. 2 H.L. 1, 18 R. C. 411; cf. Carroll v. Robertson, 1868, 15 Gr. 173 at p. 176; Fawcett v. Burwell, 1880, 27 Gr. 445. 582 CHAPTER XXVIII. MORTGAGEE IN POSSESSION. closure the mortgagee was not chargeable as a mortgagee in possession as owner he was under no obligation to repair or keep up buildings or to obtain tenants (/). So, if a mortgagee enters into possession as tenant for life or as purchaser of the equity of redemption, or as trustee or agent for the mortgagor, or in any character other than that of mortgagee, he will not be chargeable as mortgagee in pos- session (g). Generally, however, a mortgagee who enters into possession will be treated as mortgagee in possession, and be chargeable as such, though he calls himself trustee, manager or agent of the mortgagor (7i). A mortgagee will not be liable to account as a mortgagee in possession merely because the mortgage contains an attorn- ment clause () Even if a mortgage is in the form of a conveyance with a trust for sale, the mortgagee in possession is not an express trustee of the property for the mortgagor within the meaning of the equitable rule that time does not run in favour of an express trustee .(j). 302. Rights of mortgagee in possession. A mortgagee lawfully in possession has, generally speak- ing, the rights of any owner of land for the purposes of the due management and preservation of the property, subject to the liability to redemption and accounting (fc), but apart from (/) Williams v. Box (no. 2), 1913, 24 M.R. 31, 15 D.L.R. 261. (g) Kensington (Lord) v. Bouverie, 1855, 7 DeG. M. & G. 134, at p. 156. (70 Trimleston (Lord) v. Hamill, 1810, 1 Ball & B. 377. (t) Stanley v. Grundy, 1883, 22 Ch.D. 478, 3 R.C. 569; see also chapter 33, Attornmerit and Distress, 362. (;') In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284; cf. Ashworth v. Lord, 1887, 36 Ch.D. 545. (fc) As to accounting generally, see chapter 27, supra; as to the liability for waste or deterioration, see 307, infra. 302. RIGHTS OF MORTGAGEE IN POSSESSION. 583 express or statutory authority he cannot, without the mort- gagor's consent, make leases which will be binding on the mortgagor after redemption (I). The mortgagee is entitled to take the rents and profits by virtue of the legal ownership or equitable interest which the mortgage confers upon him (m). The rents received by the mortgagee are applicable in the first instance to payment of the current outgoings, such as rents, rates and taxes, repairs, insurance premiums and the interest on prior encumbrances (M), and the balance is then applicable, firstly, in payment of interest on the mortgage debt and on expenses of improve- ments and other expenses which the mortgagee is entitled to add to the mortgage debt (o), and, secondly, in payment of the principal and of capital expenditure added to principal (p). Where, however, a mortgagee in receipt of the rents and profits sold goods to the mortgagor from time to time and the latter upon a settlement of accounts assented to the rents and profits being applied first in payment of the account for goods sold, it was held that an encumbrancer whose rights accrued after the settlement could not complain of such application of the rents and profits (q). A mortgagee taking possession of the lands is entitled as against the mortgagor to all growing crops and all produce of the lands, and if possession be lawfully demanded by the mortgagee any person refusing possession may be restrained (I) Chapman v. Smith, [1907] 2 Ch. 97; see also chapter 15, Lessee of Mortgaged Land, 144. (m) Cockburn v. Edwards, 1881, 18 Ch.D. 449, at p. 457. See also chapter 15, 141 and 142. (n) Bompas v. King, 1886, 33 Ch.D. 279. (o) As to the right to reimbursement for expenses incurred, see 303, infra. (p) 21 Halsbury, Laws of England, pp. 195-197. As to the lia- bility to account for rents and profits, see 306, infra. ( and as between persons entitled in succession to the interest it will be apportioned (v). Where interest is payable periodically it is chargeable on the whole outstanding principal unless otherwise expressly provided, and where a mortgage contained a covenant to pay (p) Brown v. Barkham, 1720, 1 P. Wms. 652; Law v. Glenn, 1867, L.R. 2 Ch. 634; Standard Trusts Co. v. Hurst, 1914, 24 M.R. 185, 16 D.L.R. 473. (Q) Grahame v. Anderson, 1868, 15 Gr. 189. (r) Brown v. Deacon, 1866, 12 Gr. 198. (*) Totten v. Watson, 1870, 17 Gr. 233. (t) Re Houston, Houston v. Houston, 1882, 2 u.R. 84; Matson v. Swift, 1841, 5 Jur. 645. (tt) In re Rogers' Trusts, 1860, 1 Dr. & S. 338. (v) Edwards v. Countess of Warwick, 1723, 2 P. Wms. 171. 315. CALCULATION OF INTEREST. 609 the principal sum in eight equal annual instalments, "with interest on the principal sum remaining due at each payment," it was held that the interest must be paid with each instal- * ment on the whole principal money unpaid, and not on the instalment only (w). A mortgagee is entitled to charge interest upon all sums which by agreement express or implied he is authorized to add to his security, such as moneys paid upon prior encumbrances or for improvements, insurance premiums or taxes (x). Interest begins to run only from the time the money is actually advanced and not necessarily from the date of the mortgage^ y). Where the interest is payable in advance the mortgagee is nevertheless not entitled to have interest allowed for a period subsequent to that appointed for redemption. Thus interest on a mortgage was payable half-yearly in advance on the 1st of April and October ; the mortgagee filed a bill for sale, and the registrar on taking the account (in the latter part of January) fixed a day in July following for payment, and al- lowed the plaintiff interest to that date, but refused to allow him the half year's interest payable in advance on the 1st of April (2) . Where an action is brought to foreclose a mortgage payable by instalments, and the defendant moves to stay the action, on payment of the instalment and interest then due, the interest upon the mortgage money is to be computed only to the last preceding gale day and not to the time of the making of the application (). (w) Hall v. Brown, 1858, 15 U.C.R. 41?. (x) Quarrell v. Beckford, 1816, 1 Madd. 269; McMaster v. Hec- tor, 1872, 8 C.L.J. 284. (y) Edmonds v. Hamilton Provident and Loan Soc., 1890, 19 O.K. 677; 18 O.A.R. 347. (z) Trust and Loan Co. v. Kirk, 1880, 8 O.P.R. 203. (a) Strachan v. Murney, 1858, 6 Gr. 378; see chapter 24, Action for Foreclosure or Sale, 242. 610 CHAPTER XXIX. INTEREST. Where purchase money out of which mortgage moneys are payable is directed to be paid into court on a certain day, but is not actually paid in till long after, the mortgagee is entitled to interest at the rate reserved in his mortgage until he re- ceives notice of payment into court (&). Where the mortgagee, because he has mislaid the mortgage deed, or for some other reason, is unable to give a discharge at the time when the mortgage moneys are paid or tendered he will not be allowed subsequent interest (c). A mortgagee is not ordinarily obliged to accept payment "by driblets" (d), but if payments are in fact made from time to time on account of the mortgage, the question arises as to the manner in which the payments should be applied. If a debtor who makes payments from time to time to a "cred- itor does not stipulate for a particular mode of application, the creditor may appropriate the payments in the first place to the keeping down of the interest. The proper mode is to calculate the interest upon the debt to the time of each pay- ment, then to apply the amount paid in discharge of that in- terest in the first place, and the surplus, if any, in discharge of so much of the principal in the second place, and to proceed in like manner through the account, calculating the interest on the unpaid balance of principal in respect of the period be- tween two payments. The mode sometimes adopted, namely, to calculate interest upon the whole debt for the whole period, as if no payments had been made, on the one side, and to calculate interest on the amount of each payment from the time it was made, on the other side, and then to deduct the (6) McDermid v. McDermid, 1870, 7 O.P.R. 457. (c) Lord Middleton v. Eliot, 1847, 15 Sim. 531; James v. Rum- sey, 1879, 11 Ch.D. 398. (d) But in some circumstances a mortgagee who takes posses- sion may be obliged, in effect, to accept payment in tbis way, by applying rents and profits received upon the mortgage debt. See chapter 28, Mortgagee in Possession, 308. 315. CALCULATION OF INTEREST. 611 total of the payments and interest from the whole debt and interest, is unjust to the creditor, because the effect is to al- low interest to the debtor upon payments made on account of interest although no corresponding allowance of interest upon interest is made to the creditor (e). 316. Compound interest. Formerly a stipulation for capitalising interest in arrear, turning it into principal and charging interest upon it, how- ever formally expressed, was not allowed to prevail in equity (/), but a stipulation for compound interest is now recog- nized as valid (g) . Such a stipulation will, however, be strict- ly construed. In the absence of an agreement, express or im- plied, for compound interest the mortgagee is entitled only to simple interest (7i). Where by the terms of the mortgage interest is payable on interest in arrear, but there is no express stipulation that interest on interest shall be paid after the maturity of the principal, it has been held that interest on interest after maturity is not recoverable (i). A mortgage of leaseholds contained a proviso that if and so often as any interest due under the mortgagor's covenant should be in arrear for twenty-one days after the day ap- (e) McGregor v. Gaulin, 1848, 4 U.C.R. 378; Bettes v. Farewell, 1865, 15 U.C.C.P. 450; Patterson v. Dart, 1911, 24 O.L.R. 609. (/) Mainland v. Upjohn, 1889, 41 Ch.D. 126, at pp. 136 ff.; James v. Kerr, 1889, 40 Ch.D. 449, at pp. 459, 460. (g) Clarkson v. Henderson, 1880, 14 Ch.D. 348; Salt v. Marquess of Northampton, [1892] A.C. 1. (7i) Daniell v. Sinclair, 1881, 6 App. Cas. 181, 18 R.C. 144; Mc- Laren v. Miller, 1874, 20 Gr. 637; Thomson v. O'Toole, 1888, 21 N.S.R. 1; Richardson v. Jackson, 1897, 34 N.B.R. 301. (i) Wilson v. Campbell, 1879, 8 O.P.R. 154; Manitoba and Northwest Loan Co. v. Barker, 1892, 8 M.R. 296; Imperial Trusts Co. v. New York Security and Trust Co., 1905, 10 O.L.R. 289. Cf. King v. Keith, 1898, 1 N.B. Eq. 538, and Pringle v. Hutson, 1909, 19 O.L.R. 652, in which effect was given to stipulations for interest on interest after maturity of the principal. 612 CHAPTER XXIX. INTEREST. pointed for the payment thereof, interest should be treated as an accession to the capital as on the day on which the same ought to have been paid, and should thenceforth bear interest at the rate and on the days provided by the mortgage. The mortgagee entered into possession of the property and received the rents. On the taking of the accounts in a redemption action, it was held that if on the expiration of twenty-one days after any interest became due, the mortgagor not having paid the interest, there was in the hands of the mortgagee, after de- ducting ground rent and other proper outgoings, an amount arising from the rents received by him sufficient for the pay- ment of the interest, though it had not been actually appro- priated to that purpose, the interest could not be said to be in arrear within the meaning of the proviso, and the mortgagee was therefore not entitled to have it capitalized (j). An assignee of a mortgage is not entitled without the mort- gagor 's concurrence to interest on interest in arrear paid by him on taking over the mortgage (fc), and in a suit to redeem a mortgage against an assignee who at the mortgagor's request paid off both principal and interest due at the time of the assignment, it was held that the assignee was not entitled to interest on the sum paid for interest (I). Where a subsequent encumbrancer pays off a prior en- cumbrance he is entitled to interest on the aggregate amount paid by him for principal, interest and costs; interest on the principal being allowed at the rate reserved in his own secur- ity, but on the interest and costs at the statutory rate only (m). 317. Interest in lieu of notice. The Interest Act, R.S.C. 1906, c. 120, also contains a pro- vision (s. 10) that whenever any principal money or interest (?) Wrigley v. Gill, [1906] 1 Ch. 165. (fc) See chapter 11, Assignee of the Mortgage, 104. (I) Thomas v. Girvan, 1897, 1 N.B. Eq. 257. (m) See chapter 24, Action for Foreclosure or Sale, 241. 317. INTEREST IN LIEU OF NOTICE. 613 secured by a mortgage of real estate is not, under the terms of the mortgage, payable till a time more than five years after the date of the mortgage, any person liable to pay or entitled to redeem may thereafter tender or pay to the person entitled to receive the money the amount due for principal or interest to the time of payment, together with three months ' further inter- est in lieu of notice, and in that event no further interest shall be chargeable, payable or recoverable at any time thereafter on the principal money or interest due under the mortgage (n). Apart from statute, and as a general rule, where it may be inferred from the transaction that the loan is intended to be of a permanent character, a mortgagor must, after default in payment on the day, give to the mortgagee six months' notice of his intention to pay Off the mortgage or pay six months' interest in lieu of notice. This rule has, however, been modified by statute in Ontario (0). 318. Legislative jurisdiction as to interest and mortgages. By s. 91 of the British North America Act, 1867, exclusive legislative authority with regard to "Interest" is conferred upon the dominion parliament, and by s. 92 of the same stat- ute, in each province the legislature may exclusively make * laws in relation to "Property and Civil Rights in the Prov- ince." The subject of mortgages, generally speaking, falls within "property and civil rights in the province," and for our pres- ent purpose difficulty arises only where the subjects of interest and mortgages impinge on each other. The natural division (n) As this provision and the corresponding Ontario statute relate to the right to redeem, they are discussed in chapter 25, Action for Redemption, 252. As to the question of legislative authority, see 318, infra. (o) As the subject relates to the terms of redemption after de- fault, it is discussed in chapter 25, Action for Redemption, 253. 614 CHAPTER XXIX. INTEREST. between the legislative authority of the Dominion and that of the provinces would appear to be (1) to assign to the Domin- ion the right to legislate with regard to usury and the rate of interest generally, including the right to require that the rate- of interest shall be stated clearly in a mortgage securing the repayment of a loan with interest and, at least in the absence of express provincial legislation, the right to prescribe the rate of interest payable in cases where the rate is not specified in a mortgage, and (2) to assign to the provinces the right to legislate as to the time and terms of redemption of a mortgage, including the right to provide upon what terms a mortgage shall be redeemable after a given period or after maturity, even though the terms prescribed involve the payment of in- terest in lieu of notice. All the provisions of the Interest Act appear to fall clearly within the legislative authority of the Dominion, with the ex- ception of s. 10, which provides in effect that no mortgage shall be made irredeemable for a longer term than five years if after five years the mortgagor tenders or pays three months' interest in addition to the principal and interest to the time of tender or payment (p). The question whether this section is within the legislative authority of the Dominion is to a large extent academic in Ontario because in that province there is a similar provincial statute (g), but the question may be im- portant in some of the other provinces. In Ontario prior to the enactment of the provincial statute the validity of s. 10 of the Interest Act was upheld (r), but it is doubtful whether the decision can be justified on principle. (p) The text of the section is quoted in chapter 25, Action for Redemption, 252. (q) The Mortgages Act, R.S.O. 1914, c. 112, s. 17. (r) Bradburn v. Edinburgh Assurance Co., 1903, 5 O.L.R. 657. In the case of In re Parker, Parker v. Parker, 1894, 24 O.R. 373* the section wa.s applied and its validity appears to have been taken for granted. 318. LEGISLATIVE JURISDICTION. 615 It would seem that the minister of justice himself ques- tioned the validity of the statute on the ground that it related "not to interest, properly speaking, but rather to contracts for the securing of money clearly a matter of provincial jur- isdiction" (s). Britton, J., holding that s. 10 was intra vires, said (t) : "In so holding I do not overlook the argument that, as a logical result, the Dominion can legislate to limit any contract to the shortest duration where the interest is involved, nor do I overlook the decision in The Citizens Insurance Co. of Can- ada v. Parsons (u) that 'property and civil rights' in section 92 of the British North America Act, include rights arising from contract, . . . and are not limited to such rights only as flow from the law. It is however, one thing to legis- late where the contract has sole reference to security for money lent at interest, and quite a different thing to legislate in reference to other contracts where interest is only an inci- dent." In the passage quoted the learned judge has referred to two considerations which render it highly probable that the section ought to be held to be ultra vires. It is submitted that a statute providing that interest shall cease to be chargeable under a mortgage after a certain period upon the mortgagor making tender or payment in accordance with the statute has as its primary object the shortening of the duration of the (s) House of Commons Debates, 1886, p. 440. The paragraph In the text is in substance quoted from Lefroy, Canada's Federal Sys- tem, p. 277. The learned author, after referring to some decisions not specifically relating to s. 10, adds at pp. 278, 279: "It may be that the Dominion power as to 'interest' will be ultimately found to be confined to fixing what shall be the legal rate of interest apart from express agreement or express provincial enactment, and the passing of usury laws, restricting the charging of interest throughout the Dominion or any part thereof." (t) 5 O.L.R. 657, at p. 666. (U) 1881, 7 App. Cas. 96. 616 CHAPTER XXIX. INTEREST. contract, that is, it relates to the time and terms of redemp- tion, and this is so notwithstanding that interest is incidentally involved in the fact that the shortening of the duration of the contract is enforced by the depriving of the mortgagee of the right to subsequent interest. Further, it is submitted that in view of the fact that interest is not an essential feature of a mortgage, the contract of mortgage is not properly dis- tinguishable from all other contracts as being one which ' ' has sole reference to the security for money lent at interest. ' ' In- deed, if such a distinction were valid, it would seem to follow that the Dominion would have the right to legislate with re- gard to the subject of mortgages generally. In Ontario the Mortgages Act, R.S.O. 1914, c. 112, con- tains several sections involving the question of interest. In accordance with the division between the legislative authority of the Dominion and that of the provinces suggested above as the proper one, these sections all appear to be intra vires except perhaps s. 18. The subject matter of the last mentioned section would seem to be the rate of interest chargeable after default rather than the terms of redemption of a mortgage (v), whereas the subject matter of ss. 15, 16 and 17 (w) is the terms or the time of redemption, not the rate of interest. (v) The text is quoted in 314, supra. (w) As to ss. 15 and 16, see chapter 25, Action for Redemption, 253; as to s. 17, see 252. CHAPTER XXX. ' COSTS. 321. General principles, p. 617. 322. Costs of negotiating and completing loan, p. 618. 323. Costs incurred to protect the security, p. 619. 324. Costs of mortgage action, p. 622. 325. Taxation of costs, p. 628. 321. General principles. In England, the mortgagee on the usual order for fore- closure, as on the usual order for redemption, is entitled only to the taxed costs of the action, but on a special case being made a direction will be made for an enquiry as to the ' ' costs, charges and expenses properly incurred by him in respect of his mortgage security" (a). In Ontario it is provided by rule 410 that under an order of reference the master may take into account "costs and other expenses properly incurred" (6). The court will proceed on the principle stated in Dryden v. Frost (c) : "This Court, in settling the account between a mortgagor and mortgagee, will give to the latter all that his contract, or the legal or equitable consequences of it, entitle him to receive, and all the costs properly incurred in ascertaining or defending such rights, whether at law or in equity. But even as to the costs in equity this Court exercises a discretion, and refuses to him his costs if his conduct has been improper; and, in some cases, orders him to pay them. In Detillin v. Gale () Teed v. Carruthers, 1842, 2 Y. & C.C.C. 31; Ford v. Earl of Chesterfield, 1853, 16 Beav. 516; Earl of Cork v. Russell, 1871, L.R. 13 Eq. 210. (x) Cash v. Belcher, 1842, 1 Hare 310; Grigg v. Sturgis, 1846, 5 Hare 93. (y) Maxwell v. Wightwick, 1866, L.R. 3 Eq. 210. (z) Bradley v. Borlase, 1858, 7 W.R. 125. (a) See chapter 24, Action for Foreclosure or Sale, 238. 628 CHAPTER XXX. COSTS. if such person appears and disclaims he is not entitled to costs (6). 325. Taxation of costs. It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, s. 30, that where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the money secured by such mortgage or declaring an intention to pro- ceed under and exercise the power of sale therein contained, if there is a dispute as to the costs payable by the person by whom or on whose behalf payment is made or tendered, the costs shall be taxed by the clerk of the county or district court or by the local master of the county or district in which the mortgaged property or any part thereof is situate (c). It is also provided by the same section of the statute that a mortgagee's costs of and incidental to the exercise of a power of sale may, without an order, be taxed at the instance of any person interested by one of the taxing officers of the Supreme Court at Toronto or by a local master having jurisdiction in the county or district in which the mortgaged property or any part of it is situate. A local registrar who is not a local master has no jurisdiction (d). No appeal lies from the tax- ation (e). If a mortgagee -is a solicitor he will not be allowed profit costs, but only costs out of pocket, in respect of any legal pro- ceedings taken by him personally to recover the mortgage debt (&) Hatt v. Park, 1858, 6 Gr. 553; Lewin v. Jones, 1884, 51 L.T. 59. (c) See chapter 31, Sale under Power of Sale, 340, where the provisions of ss. 29 and 30 of the statute are quoted. (a) Re Drinkwater and Kerr, 1907, 15 O.L.R. 76. (e) Re Vanluven and Walker, 1900, 19 O.P.R. 216. 325. TAXATION OF COSTS. 629 (/) , but a solicitor acting for himself and a co-mortgagee who is not a solicitor is entitled to profit costs (g) . Where the legal proceedings are taken by the firm of which the solicitor mort- gagee is a member, his partners- will be entitled to the same share of such profit costs as they are entitled to in the general profits of the partnership business (7i). It has been held that a covenant in the mortgage deed to pay profit costs to a solicitor mortgagee would be void as being a contract for a collateral advantage beyond the principal and interest, and the costs to which a solicitor mortgagee is ordin- arily entitled (i). In England under the Mortgagees' Legal Costs Act, 1895 a solicitor who is a mortgagee either alone or jointly with any other person is now entitled to profit costs. Provision is made by the Solicitors Act, R.S.O. 1914, c. 159, s. 40, as follows : 40. (1) Where any person, not being chargeable as the principal party, is liable to pay or has paid any bill either to the solicitor, his assignee or personal representative, or to the principal party en- titled thereto, the person so liable to pay or paying, his assignee or personal representative, may apply to the court or a judge for an order referring to taxation as the party chargeable therewith might himself have done, and the same proceedings shall be had thereupon as if the application had been made by the party so chargeable. A mortgagor is a third party within the act so as to entitle him 'to have the mortgagee's costs taxed (j). Where a first mortgagee sells under the power of sale contained in the mort- gage, a subsequent mortgagee is entitled to an order to tax (/) In re Wallis, Ex parte Lickerish, 1890, 25 Q.B.D. 176; Eyre v. Wynn-Mackenzie, [1894] 1 Ch. 218; Stone v. Lickerish, [1891] 2 Ch. 363. (g) Sclater v. Cottam, 1857, 3 Jur. N.S. 630; In re Doody, Hib- bert v. Lloyd, [1893] 1 Ch. 129. (7i) In re Doody, Fisher v. Doody, [1893] 1 Ch. 129; Eyre v. Wynn-Mackenzie, supra. (i) Eyre v. Wynn-Mackenzie, supra. Under the more recent authorities, however, a stipulation for a collateral advantage is valid if it is not oppressive: see chapter 3, Legal Mortgage in Equity, 25. (;) Ex parte Glass, Re Macdonald, 1863, 3 O.P.R. 138. 630 CHAPTER XXX. COSTS. the first mortgagee's costs of exercising the power, such costs to be taxed as between solicitor and client (fc). It has been held that if the mortgagee has paid his soli- citor's costs and so precluded himself from taxing the bill, the mortgagor who stands simply in the place of the mortgagee has no right to tax the costs, and that if the mortgagee has paid the solicitor more than the proper costs the mortgagor's only remedy is against the mortgagee for an account (I}. It is, however, provided by s. 42 of the Solicitors Act as follows : 42. The payment of any bill shall not preclude the court or Judge to whom the application is made from referring it for taxation, upon such terms and subject to such directions as to the court or judge may seem just, if the application is made within twelve months after payment, and if the special circumstances (m) of the case, in the opinion of the court or judge, appear to require the taxation. Upon a reference in an action for foreclosure or sale in an action for redemption, one of the duties of the master is to tax the costs of the various parties (n). (fc) Re Crerar & Muir, 1879, 8 O.P.R. 56; Re O'Donohoe, 1868, 4 O.P.R. 266; In re Jessop, 1863, 32 Beav. 406. (?) Re McDonald, McDonald & Marsh, 1879, 8 O.P.R. 88; Re Cronyn, Kew & Betts, 1880, 8 O.P.R. 372; Re Massey, 1865, 34 Beav. 463. (m) See In re Hirst & Capes, [1908] 1 K.B. 982, S.C. sub nom. Hirst v. Fox, [1908] A. C. 416. (re) See chapter 24, Action for Foreclosure or Sale, 239, 241,. and chapter 25, 'Action for Redemption, 259. PART VIII. STATUTORY OR CONTRACTUAL RIGHTS. CHAPTER XXXI. SALE UNDER POWER OF SALE. 331. Origin of the power of sale, p. 631. 332. Statutory implied power of sale, p. 633. 333. Contractual power of sale, p. 638. 334. Statutory short form of power of sale, p. 640. 335. Qualifications of the short form, p. 642. 336. Who may exercise the power, p. 646. 337. When the power may be exercised, p. 649. 338. Power of sale without notice, p. 653. 339. Form and service of notice, p. 654. 340. Concurrent proceedings by the mortgagee, p. 662. 341. Conduct of the sale, p. 665. 342. Who may purchase, p. 673. 343. The conveyance and its effect, p. 676. 344. Application of the proceeds, p. 680. 345. Power of sale under Land Titles Acts, p. 683. 331. Origin of the power of sale. At common law a mortgage created in favour of the mort- gagee an estate upon condition, and the mortgagor's interest in the land was liable to forfeiture on default in strict per- formance (a). In equity, however, it was held that the mort- gagor had an equitable right to redeem after his contractual or legal right was forfeited (&). Until the mortgagee's right (a) See chapter 2, Mortgage at Common Law. (6) See chapter 3, Legal Mortgage in Equity. The mortgagee's estate having become absolute at law he could of course convey the 632 CHAPTER XXXI. SALE UNDER POWER OF SALE. to a judicial sale was introduced by statute, usually the only way in which the mortgagee could put an end to the mort- gagor 's equitable right to redeem or equity of redemption was by a suit for foreclosure (c). The necessity thus imposed upon the mortgagee of fore- closing the equity of redemption a tedious process where there were several subsequent encumbrances and therefore successive periods of redemption led to the introduction by conveyancers of the power of sale, a remedy intended to afford a simpler and more expeditious mode of getting rid of the mortgagor's equity of redemption and of realizing the mort- gage debt. Courts of equity, however, did not view powers of sale with favour, but regarded them as opposed to the equitable doctrine that the mortgagor had an equity of redemption which could not be got rid of without a decree of foreclosure. Thus in a case in 1738 (d) the mortgagor was let in to re- deem several years after the exercise of the power, and in 1801 Lord Kenyon, C.J. said : "In mortgage deeds there is sometimes introduced a clause that the mortgagee may repay himself by sale of the mortgaged premises without the concurrence of the mortgagor; but a court of equity would, I believe, control the exercise of that power." (e) In 1802 (/), however, the validity of a power of sale was expressly affirmed, and it was held that the mortgagee might exercise such a power, without the concurrence of the mort- gagor, though the latter had covenanted with the mortgagee to join in a sale. legal estate without an express power of sale, although there might be an equitable interest outstanding in the mortgagor. Nesbitt v. Rice, 1864, 14 U.C.C.P. 409. (c) See chapter 24, Action for Foreclosure or Sale, 245. (d) Croft v. Powel, 1738, Comyns 603. (e) King v. Parish of Edington, 1801, 1 East 288. (/) Clay v. Sharpe, 1802, 18 Ves. 346 n., followed in Cordery v. Morgan, 1811, 18 Ves. 344, 18 R.C. 442. 331. ORIGIN OF THE POWER OF SALE. 633 It may now be considered as settled that a power of sale is a usual and proper term of the ordinary mortgage deed. This point has arisen in England in cases in which the ques- tion before the court was whether a power to mortgage auth- orized the making of a mortgage containing a power of sale. Malins, V. C. said (g) : "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 that the mortgage may contain what mortgages in general do con- tain, namely, a power of sale. I entirely agree with what the Master of the Rolls said in Cook v. Dawson (h) 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." In a suit by a vendor for specific performance, where the vendor was ordered to execute a deed and the vendee to execute a mortgage, the opinion was expressed that it would be im- proper to insert a power of sale in the mortgage (i), but in another case (j) a decree was made for specific performance of a contract to execute a mortgage containing a power of sale. The power of sale has also been recognized by legislation. The Short Forms of Mortgages Act (A;) provides a form of power of sale, and by the Mortgages Act (I) an implied power of sale is given to mortgagees in certain circumstances. 332. Statutory implied power of sale. In England prior to the passing of Lord Cran worth's Act (g) In re Chawner's Will, 1869, L.R. 8 Eq. 569. (7i) 1861, 29 Beav. 123 at p. 128. (i) McKay v. Reed, 1864, 1 Chy. Ch. (U.C.) 208. (;) Ashton v. Corrigan, 1871, L.R. 13 Eq. 76; cf. Hermann v. Hodges, 1873, L.R. 16 Eq. 18. (fc) See 333, infra. (I) See 332, infra. 634 CHAPTER XXXI. SALE UNDER POWER OF SALE. (m), in order that a mortgagee might sell the mortgaged lands without judicial proceedings it was necessary that a power of sale should be given expressly by the mortgage deed. By that act a power of sale was implied in certain cases. The sections of Lord Cranworth's Act relating to implied powers of sale were repealed by the Conveyancing Act, 1881 (w), but not so as to affect mortgages made prior to 1882. The last mentioned statute (s. 19) gives to a mortgagee whose mortgage is made by deed a power of sale somewhat similar to the power given in Ontario by the Mortgages Act, except in so far as a contrary intention is expressed in the mortgage deed, and subject to the terms of the mortgage deed. The statute also provides as follows : 20. A mortgagee shall not exercise the power of sale conferred by this Act unless and until (i) Notice requiring payment of the mortgage money has been served on the mortgagor or one of several mortgagors, and default has been made in payment of the mortgage money, or of part there- of, for three months after such service (o); or (ii) Some interest under the mortgage is in arrear and unpaid for two months after becoming due; or (iii) There has been a breach of some provision contained in the mortgage deed or in this Act; and on the part of the mortgagor, or of some person concurring in making the mortgage, to be ob- served or performed, other than and besides a covenant for payment of the mortgage money or interest thereon. It is provided in Ontario by the Mortgages Act, R.S.O. 1914, c. 112, as follows (p) : 19. Where any principal money is secured by mortgage of land executed after the llth day of March, 1879, the mortgagee shall, at any time after the expiration of four months from the time when the principal money shall have become payable, according to the terms of the mortgage, or after any interest on the principal money shall have been in arrear for six months, or after any omission to pay any premium on any insurance which, by the terms of the mortgage, (m) 23 & 24 V. c. 145 (1860). () 44 & 45 V. c. 41. (o) See 337, infra. (p) By s. 2 "mortgagee" includes any person deriving title un- der the original mortgagee. 332. STATUTORY IMPLIED POWER OF SALE. 635 ought to be paid by the mortgagor, have the following powers to the like extent as if they had been in terms conferred by the mortgage but not further, namely: (a) A power to sell, or concur with any other person in selling, the whole or any part of the mortgaged property by pub- lic auction or private contract, subject to any reasonable conditions he may think fit to make.and to buy in at an auc- tion and to rescind or vary contracts for sale, and to re- sell the land, from time to time, in like manner without being answerable for any loss occasioned thereby; (b) A power to insure and keep insured against loss or damage by fire any building or any effects or property of an in- surable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be a charge on the mortgaged property, in addition to the mort- gage money and with the same priority and with interest at the same rate as the mortgage money (q). 20. A receipt for purchase money given by the person exercising the power of sale by the next preceding section conferred, shall be a sufficient discharge to the purchaser, who shall not be bound to see to the application of the purchase money. 21. (1) No sale under the power conferred by section 19 shall be made until after two months' notice in writing, form 1, has been given to every subsequent encumbrancer, and to the mortgagor, either personally or at his usual or last place of residence in Ontario. (2) The notice may be given at any time after any default in making a payment provided for by the mortgage. (3) In case of the death of the person entitled subject to the mortgage, and of his interest passing to an infant, the notice shall be given to his personal representative as well as to the infant. (4) The notice to the infant shall be served upon his guardian, and if he has no guardian, upon the Official Guardian, and in every case upon the infant himself if over the age of twelve years. 22. Where a conveyance has been made in professed exercise of the power of sale conferred by section 19 the title of the purchaser shall not be liable to be impeached on the ground that no case had arisen to authorize the exercise of such power, or that such power had been improperly or irregularly exercised, or that such notice has not been given; but any person damnified by an unauthorized, improper or irregular exercise of the power, shall have his remedy against the person exercising the power. 23. The money arising from the sale shall be applied by the person receiving the same as follows: (q) See chapter 34, Fire Insurance, 372. 636 CHAPTER XXXI. SALE UNDER POWER OF SALE. Firstly, in payment of all the expenses incident to the sale or in- curred in any attempted sale; Secondly, in discharge of all interest and costs then due in re- spect of the mortgage under which the sale was made; Thirdly, in discharge of all the principal money then due in respect of such mortgage; and Fourthly, in payment of the amounts due to the subsequent encumbrancers according to their priorities; and the residue shall be paid to the mortgagor. 24. The person exercising the power of sale shall have power to convey or assign to and vest in the purchaser the property sold, for all the estate and interest therein of the mortgagor and of which he had power to dispose. 25. At any time after the power of sale shall have become ex- ercisable, the person entitled to exercise the same shall be entitled to demand and recover from the mortgagor all deeds and documents in his possession or power relating to the mortgaged property, or to the title thereto, which he would have been entitled to demand and recover if the property had been conveyed, appointed, surrendered or assigned to and was then vested in him for all the estate and in- terest of the mortgagor and of which he had power to dispose; and where the legal estate is outstanding in a trustee the mortgagee, or any purchaser from him, shall be entitled to call for a conveyance of the legal estate to the same extent as the mortgagor could have called for such a conveyance if the mortgage had not been made. 26. So much of this Part as confers a power to sell shall not apply in the case of a mortgage which contains a power of sale except as in section 27 provided; and so much as confers a power to insure shall not apply in the case of a mortgage which contains a power to insure; nor shall any of the provisions of this Part apply to a mortgage which contains a declaration that this Part shall not apply thereto. 27. (1) Where a mortgage made in pursuance of The Short Forms of Mortgages Act contains a power of sale in the form no. 14, in Column One of Schedule B to that Act, the mortgagee may, in exercising the power, in lieu of taking the proceedings provided for by such form, Column Two, take proceedings under and have the benefit of the provisions of this Part, except that such power shall not be exercisable until after at least four months' default and at least two months' notice, or such longer periods as may by the power contained in such mortgage be fixed therefor, and this Part shall apply to a sale made under such power. (2) Where a mortgage purporting to be made in pursuance of The Short Forms of Mortgages Act contains a power of sale which provides for a sale without notice, the mortgagee may take proceedings to sell under and have the benefit of the provisions of 332. STATUTORY IMPLIED POWER OF SALE. 637 this Part as fully and effectually as if the mortgage had not con- tained a power of sale. (3) Subsection 2 shall apply to all mortgages whether hereto- fore or hereafter made (r). Form 1, referred to in s. 21 is as follows: NOTICE OF SALE UNDER MORTGAGE. I hereby require you on or before the day of 19 , (a day not less than two calendar months from the service of the notice, and not less than six months after the default), to pay off the principal money and interest secured by a certain mortgage dated the day of 19 , and expressed to be made between (here state parties and describe mortgaged property), which mort- gage was registered on the day of 19 (and if the mortgage has been assigned add: and has since become the property of the undersigned). And I hereby give you notice that the amounts due on the said mortgage for principal, interest, and costs respect- ively, are as follows: (set the same forth). And unless the principal money, interest and costs are paid on or before the said day of 19 , I shall sell the property comprised in the said mortgage under the authority of The Mortgages Act. Dated the day of 19 . The foregoing provisions do not apply to a mortgage which contains an express power of sale except in the two cases pro- vided by s. 27. They do not apply, for instance, if the mort- gage is not made in pursuance of the Short Forms of Mort- gages Act and contains an express power of sale which for any reason is defective, or if the mortgage is made in pur- suance of the act and contains a power of sale which departs from the short form in any respect other than in providing for a sale without notice. Other questions arising under the foregoing provisions or with regard to their subject matter will be discussed below (s). (r) Sub-s. 1 dates from 1888 and ub-s. 2 from 1890. As to the decisions which were the cause of the passing of these amendments, see 335, infra. (s) As to notice of exercising the power of sale, see 339; as to the conduct of the sale, see 341; as to the conveyance and its effect, see 343; as to the application of the proceeds of the sale, see 344. 638 CHAPTER XXXI. SALE UNDER POWER OF SALE. 333. Contractual power of sale. In Ontario the ordinary practice is to use the short form of power of sale provided by the Short Forms of Mortgages Act (t) with such qualifications and additions as may seem advisable. An express power of sale may, however, take various forms. It may be in the form of a trust for reconveyance on payment of the mortgage debt on the day appointed, and in default of payment for sale, or the estate may be limited to the use of the mortgagee for a term of years with a proviso for redemp- tion, and subject thereto to the use of trustees in fee simple upon trust to sell. The estate may also be limited at once to trustees in fee simple to sell if the mortgage moneys are not paid by the appointed time, with a proviso for redemption. The appointment of third persons as trustees for sale is, however, not desirable, as this course may occasion delay, in- convenience and greater expense. A mortgagee exercising the power of sale will not be subject to the same restraint as a trustee. Thus where the power of sale was vested in a trustee the court, on the application of the mortgagor, restrained the sale until the trustee should give notice to both the mortgagee and the mortgagor, upon the ground that it was the duty of the trustee to attend to the interests of both mortgagee and mort- gagor, but in the same case a motion to restrain the mortgagee from proceeding without notice, made under the apprehension that the power was vested in the mortgagee, had been previous- ly refused (u). The following form of power of sale may be adopted : Provided that the said mortgage on default of payment for [one month] may on [one month's] notice enter on and lease or sell the said lands (v). (t) See 334, infra. (u) Anon, 1821, 6 Madd. & G. 10. (v) The first clause in the suggested power of sale follows the 333. CONTRACTUAL POWER OF SALE. 639 Provided also that such notice may be effectually given either by the leaving of the same with a grown up person on the said lands if occupied or by the placing of it thereon if unoccupied or at the option of the mortgagee by the mailing of the same in a registered letter addressed to the mortgagor at or by the publication of the same once in some newspaper published in the county in which said lands are situate and shall be sufficient though not addressed to any person or persons by name or designa- tion and notwithstanding any person or persons to be affected there- by may be unborn, unascertained or under disability; and that should default continue for two months a sale may be made hereunder by public auction or private contract or partly one or partly the other, with or without entry on said lands and without any notice whatso- ever; and that the whole or any part or parts of the said lands may be sold; and that the proceeds of any sale hereunder may be applied in payment of any costs, charges and expenses incurred about taking, recovering or keeping possession of the said lands or by reason of non-payment or procuring payment of moneys secured hereby or otherwise; and that the mortgagee may sell any of the said lands on such terms as to credit and otherwise as shall appear to him most advantageous and for such prices as, can reasonably be obtained therefor and may make any stipulations as to title or evidence or commencement of title or otherwise which he shall deem proper; and may buy in or rescind or vary any contract for the sale of the whole or any part of the said lands and re-sell without being answerable for loss occasioned thereby, and in the case of a sale on credit the mortgagee shall be bound to pay the mortgagor only such moneys as have been actually received from purchasers after the satisfaction of the claims of the mortgagee, and for any of said purposes may make and execute all agreements and assurances as he shall think fit; and that any purchaser or lessee shall not be bound to see to the propriety or regularity of any sale or lease or be affected by express notice that any sale or lease is improper; and that no want of notice or publication when required hereby shall invalidate any sale or lease hereunder; and that the mortgagee shall have power to convey or assign to and vest in the purchaser the property sold, for all the short form provided by the Short Forms of Mortgages Act, the blanks in that form to be filled by the words within square brackets or such other words indicating the period of default and the length of notice as the parties may agree upon. As to the care to be exercised in making any change in the wording of the short form, see 335, infra. If the form is strictly followed and the mortgage is expressed to be made pursuant to the Short Forms of Mortgages Act, the word "mortgagee" includes the mortgagee's "heirs, executors, administrat- ors or assigns" and in other respects the power operates as if it were expressed in the corresponding extended form. See 334, infra. 640 CHAPTER XXXI. SALE UNDER POWER OP SALE. estate and interest therein of the -mortgagor and of which he has power to dispose (to). 334. Statutory short form of power of sale. The short form of power of sale provided in Ontario by the Short Forms of Mortgages Act (x) is as follows: Provided, that the said mortgagee on default of payment for may on . notice enter on and lease or sell the said lands. In the case of a mortgage expressed to be made in pur- suance of the statute, the foregoing power of sale has the same effect as if it were in the following terms (y) : Provided always, and it is hereby declared and agreed by and between the parties to these presents, that if the said mortgagor, his heirs, executors or administrators, shall make default in any pay- ment 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 hereinbefore contained, and shall have thereafter elapsed without such payment 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, executors, administrators or assigns, of his or their inten- tion 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, executors, administrators or assigns, to enter into possession of the said lands, tenements, hereditaments and pre- mises hereby conveyed, or mentioned or intended so to be, and to re- ceive and take the rents, issues and profits thereof, and whether in (w) Whenever the word "mortgagee" occurs in a special pro- vision not taking effect by virtue of the Short Forms of Mortgages Act, it should be followed by the words "his heirs, executors, adminis- trators or asigns," unless there is in the mortgage a general pro- vision that the powers given to the mortgagee may be exercised by, or that the mortgagee shall be deemed to include, his heirs, execu- tors, administrators or assigns. See 335, infra. (x) R.S.O. 1914, c. 117, schedule B, clause 14. (y) See chapter 35, Short Forms of Mortgages Act, 381. 334. SHORT FORM OF POWER OF SALE. 641 or out of possession of the same, to make any lease or leases thereof, or of any part thereof as he or they shall think fit, and also to sell and absolutely dispose of the said lands, tenements, hereditaments and premises hereby conveyed or mentioned, or intended so to be, or any part or parts thereof, with the appurtenances, by public auc- tion or private contract, or partly by public auction and partly by private contract, as to him or them shall seem meet, and to convey and assure the same when so sold unto the purchaser or purchasers thereof, his or their heirs, or assigns, or as he or they shall direct and appoint and to execute and do all such assurances, acts, mat- ters, and things as may be found necessary for the purposes afore- said, and the said mortgagee, his heirs, executors, administrators or assigns shall not be responsible for any loss which may arise by reason of any such leasing or sale as aforesaid unless the same shall happen by reason of his or their wilful neglect or default; and it is hereby further agreed between the parties to these presents, that, until such sale or sales shall be made as aforesaid, the said mortgagee, his heirs, executors, administrators or assigns shall and will stand and be possessed of and interested in the rents and profits of the said lands, tenements, hereditaments, and premises, in case he or they shall take possession of the same on any default as aforesaid, and after such sale or sales shall stand and be possessed of and inter* ested in the moneys to arise and be produced by such sale or sales, or which shall be received by the mortgagee, his heirs, executors, .administrators or assigns, by reason of any insurance upon the said premises or any part thereof, upon trust in the first place to pay and satisfy the costs and charges of preparing for and making sales, leases and conveyances as aforesaid, and all other costs and charges, damages and expenses which the said mortgagee, his heirs, execu- tors, administrators or assigns, shall bear, sustain, or be put to for taxes, rents, insurances and repairs, and all other costs and charges which may be incurred in and about the execution of any of the trusts in him or them hereby reposed, and in the next place to pay and satisfy the principal sum of money and interest hereby secured or mentioned or intended so to be or so much thereof as shall re- main due and unsatisfied up to and inclusive of the day whereon the said principal sum shall be paid and satisfied; and after full payment and satisfaction of all such sums of money and interest as aforesaid, upon this further trust that the said mortgagee, his heirs, executors, administrators or assigns, do and shall pay the surplus, if any, to the said mortgagor, his heirs, executors, administrators or assigns, or as he or they shall direct and appoint, and shall also, in such event, at the request, costs and charges in the law of the said mortgagor, his heirs, executors, administrators or assigns, convey and assure unto the said mortgagor, his heirs, executors, admin- inistrators or assigns, or to such person or persons as he or they shall direct and appoint, all such parts of the said lands, tenements, 642 CHAPTER XXXI. SALE UNDER POWER OF SALE. hereditaments and premises as shall remain unsold for the purposes aforesaid, freed and absolutely discharged of and from all estate, lien, charge and incumbrance whatsoever by the said mortgagee, his heirs, executors, administrators or assigns, in the meantime, but so as no person who shall be required to make or execute any such assurances, shall be compelled for the making thereof to go or travel from his usual place of abode; Provided, always, and it is hereby further declared and agreed by and between the parties to these presents, that notwithstanding the power of sale and other the powers and provisions contained in these presents, the said mort- gagee, his heirs, executors, administrators or assigns, shall have and be entitled to his right of foreclosure of the equity of redemption of the said mortgagor, his heirs, executors, administrators and as- signs in the said lands, tenements, hereditaments and premises as fully and effectually as he or they might have exercised and enjoyed the same in case the power of sale, and the other former provisoes and trusts incident thereto had not been herein contained. The construction placed upon some of the clauses in the extended form will be discussed below (2). Express excep- tions from or qualifications of the short form may be intro- duced into it or annexed to it (a), and it is also advisable in any ease to add special provisions (ft). 335. Qualifications of the sliort form of power of sale. The Short Forms of Mortgages Act provides that the part- ies may introduce into, or annex to any of the short forms any express exceptions therefrom or express qualifications there- of; and the like exceptions and qualifications shall be taken to be made from or in the corresponding extended forms (c), but in order to obtain the benefit of the extended form, care (z) As to the provision with regard to service on the mortgagor at his usual or last place of residence within the province, see 339; as to the manner of selling and the conduct of the sale, see 341; as to the conveyance and its effect, see 343; as to the application of the proceeds of the sale, see 344. (a) See 335, infra. (6) Se.e 333, supra. (c) R.S.O. 1914, c. 117, s. 4 (3). See chapter 35, Short Form-s of Mortgages Act, 381. The short form and the corresponding extended form of power of sale are set out in 334. 335. QUALIFICATION OF SHORT FORM. 643 should be taken to avoid any change in the wording of the short form otherwise than by way of express exception or qualification. If the wording used is ,not in conformity with the short form, it will have effect according to ordinary rules of construction without reference to the extended form (d). An assignee of a mortgage is not entitled to exercise the power of sale unless it is expressly reserved to him (e). No difficulty arises in this respect if a sale is made under the short form because the corresponding extended form provides that the power may be exercised by the mortgagee, his heirs, executors, administrators or assigns, but to enable the assignee of a mortgage to sell under a special power of sale which is not in conformity with the statute and which operates without reference to the extended form, it is necessary that the power should by its terms be exercisable by the assigns of, or by persons claiming under, the original mortgagee (/). A power of sale was in the following words: "Provided that the said mortgagee, on default of payment for two months, may without giving any notice, enter on and lease or sell the said lands," and it was held that this was neither an excep- tion from or a qualification of the form provided by the stat- ute, but an abolition of one of its most important terms, that is, that written notice should be given to the mortgagor. The power, therefore, was personal to the mortgagee and could not be exercised by his assigns (gr). In a subsequent case, where the power was in the following words: "Provided that the mortgagee on default of payment for one day may, without any notice, enter on and lease or sell said lands, ' ' a divisional (d) Cf. R.S.O. 1914, c. 117, s. 5, in 381. (e) See 336, infra. (/) It would of course be sufficient to have a general provision in the mortgage that the word "mortgagee" means the "mortgagee, his heirs, executors, administrators or assigns." (0) Re Gilchrist and Island, 1886, 11 O.R. 537. 644 CHAPTER XXXI. SALE UNDER POWER OF SALE. court was divided in opinion on the question whether the power was operative under the statute (7i). Prior to 1910 (i) the short form was as follows: "Provided that the mortgagee on default of payment for months may on notice enter on and lease or sell the said lands" (j), and it was held that the substitution of the word "month" for the word "months" was not a material alter- ation, and that the assignee of the mortgage might exercise a power of sale which was expressed to be exercisable on de- fault of payment for one month (k) . ,So, it has been held that the insertion of the word " calendar" before the word "month" is not a material alteration (I). From a subsequent case in the Court of Appeal (m) it ap- pears that a special power of sale may be so worded as to import into it by relation all the provisions of the extended form except as varied by the terms of the special power. The terms of the special power and the decision of the court are sufficiently set out in the following extract from the judgment of Osier, J.A. (n) : "There is first the usual short form clause of power of sale after notice which must be read, in accordance with the Act and clause 3 of the Directions, R.S.O. (1887) ch. 107, Schedule B, Form 14, in the extended form, the substitution of the word 'month' for 'months,' if important, being in my humble judgment an express qualification within the meaning of the Act, of Form 14 in the first column of the schedule. Then follows a separate clause: 'Provided also that in case default be made in payment of either principal or interest for two months after any payment of either falls due, the said power of sale and entry may be acted upon without any notice.' This clause is to be read just as if the previous clause had been set forth in its (h) Clark v. Harvey, 1888, 16 O.R. 159. (i) 10 E. 7, c. 55, schedule B. (;) R.S.O. 1897, c. 126, schedule B. .(fc) Re Green and Artkin, 1887, 14 O.R. 697. (0 Re Cotter, 1903, 14 M.R. 485. (m) Barry v. Anderson, 1891, 18 O.A.R. 247; cf. Re Cotter, 1903, 14 M.R. 485. (n) 18 O.A.R. at pp. 248, 249. 335. QUALIFICATION OF SHORT FORM. 645 extended form, since that clause is, as 1 hold, in exact compliance with the Act, and is therefore to be construed as if it had been in the form of words in column 2 of the schedule, the extended form. Read- ing the second clause as following the extension it declares that in the event it provides for, the said power of sale and entry may be acted upon without notice. All the terms of 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 next aids this construction by providing that 'any sale under the power may be varied or rescinded. And also that the said mortgagees, their heirs, executors, administrators and assigns may buy in and resell without being responsible for any loss or deficiency on resale.' The case appears to me distinguishable from Re Gilchrist and Island and Clark v. Harvey (o), where the mortgages did not contain the symbolical form given in column 1 of the schedule, and it therefore became impossible to revert to the exponential form in column 2. It is plain, for the reasons already given, that no such difficulty exists here." By the Mortgage Amendment Act, 1888 (p), there was enacted the provision which was afterwards incorporated in the Act respecting Mortgages of Real Estate, R.S.O. 1897, c. 121, s. 34, as follows (q) : 34. No sale made prior to the 23rd day of March, 1888, shall be declared to be invalid on the ground, or by reason only of the same having been made in pursuance of a power of sale contained in a mortgage where such power has been exercised by an assignee of such mortgage instead of the original mortgagee unless within two years after the making of any such sale, proceedings have been taken to declare the same to be invalid or irregular; but nothing in this section contained shall be deemed or construed to confirm any such sale which for any other reason or any other ground might be set aside, or declared irregular or invalid; nor shall anything herein contained affect any proceeding, suit or matter, adjudged or de- termined before or pending at the said date or brought within three months thereafter. In 1888 (r) and 1890 (s) there were enacted the provis- (o) Cited supra, (p) 51 V. c. 15, s. 5. (q) Left unrepealed by 10 E. 7, c. 51, s. 30, but not incorporated in the revised Mortgages Act. (r) 51 V. c. 15, s. 4. (s) 53 V. c. 27, s. 1. 646 CHAPTER XXXI. SALE UNDER POWER OF SALE. ions which are now contained in s. 27 of the Mortgages Act (t) . In the case of a sale made under the short form it is not necessary that the sale should be preceded by an entry, because under the extended form the mortgagee may exercise the power ' ' whether in or out of possession. ' ' Opinions have differed whether under a power to enter on or lease or sell the lands which does not operate under the statute, there must be an entry before the sale (u). 336. Who may exercise ike power. The assignment of the morgaged land and of the mortgage debt does not enable the assignee to exercise a power of sale in the mortgage unless the power is by its terms exercisable by the assigns of the mortgagee or by persons claiming under the mortgagee (v). In Ontario no difficulty in this respect arises if a sale is made under the implied power of sale pro- vided for by the Mortgages Act (w), because in that statute the word mortgagee is denned as including any person deriving title under the original mortgagee; nor does any difficulty arise in the case of a sale under a power of sale expressed m the short form provided by the Short Forms of Mortgages Act (#) because by the corresponding extended form the power is, exercisable by the mortgagee, his heirs, executors, administra- tors or assigns. In a special contractual power of sale not op- erating under the last mentioned statute, however, it is neces- sary that express provision should be made for the exercise (t) See 332, supra. (u) Clark v. Harvey, 1886, 16 O.R. 159; Pottruff v. Tweedle, (not reported) referred to in Anderson v. Hanna, 1889, 19 O.R. 58, at p. 65. (v) Re Gilchrist and Island, 1886, 11 O.R. 537; In re Rumney and Smith, [1897] 2 Ch. 351. (w) See 332, supra. (a;) See 334, supra. 336. WHO MAY EXERCISE THE POWER. 647 of the power by the assignee of the mortgagee or by persons deriving title under the original mortgagee (y}. Formerly under the short form of power of sale the power was by the corresponding extended form expressed to be exer- cisable by the mortgagee, his heirs or assigns (2), but under the later statutes the power is expressed to be exercisable also by the executors or administrators of the mortgagee (a), the personal representatives being the persons in whom the mort- gaged estate vests and who are entitled to receive the mortgage money and assign or discharge the mortgage (&). A mortgagee may effectively appoint an attorney to exer- cise the power of sale, as, for instance, by a general authority to the attorney to sell and transfer property held by his prin- cipal as mortgagee or by a special power of attorney to enforce the principal's security by sale. An authority merely to sell any property belonging to the principal and to give a dis- charge for any money owing to the principal by virtue of any security will not, however, be sufficient to enable the attorney to exercise a power of sale in a mortgage. An authority in such terms would authorize only the sale of the mortgagee's interest in the property, not the sale and destruction of the mortgagor's equity of redemption (c). A power of at- torney to enable an agent to convey the legal title must be under seal (d). Mortgagees by a power of attorney authorized their agent to enter on and take possession of the mortgaged lands and sell the same at public or private sale and for the best price that (y) See 335, supra. A special form of power of sale is sug- gested in 333, supra. (z) R.S.O. 1877, c. 104. (a) R.S.O. 1887, c. 107; R.S.O. 1897, c. 126; R.S.O. 1914, c. 117. (6) See chapter 13, Persons entitled on Death of the Mortgagee, 123 and 124. (c) In re Dowson and Jenkins's Contract, [1904] 2 Ch. 19. (a) Hesse v. Briant, 1856, 2 Jur. N.S. 922. 648 CHAPTER XXXI. SALE UNDER POWER OF SALE. could be obtained for them, and to execute all necessary re- ceipts, etc., which receipts "should effectually exonerate every purchaser or other person taking the same from all liability of seeing to the application of the money therein mentioned to be received and from being responsible for the loss, misap- plication or non-application thereof. ' ' The agent took posses- sion and sold the land, receiving part of the purchase money in cash and the balance in a promissory note of the purchaser payable to himself, which he caused to be discounted ; and he appropriated the proceeds. The purchaser paid the note to the holders at maturity. It was held that the power of attorney did not authorize a sale upon credit, and the sale by the agent was therefore invalid, and the purchaser was not relieved by the above clause from seeing that the authority of the agent was rightly exercised. The sale being invalid the subsequent payment of the note by the purchaser could not make it good (e). Where the power of sale was, in a mortgage in fee, re- served to the mortgagee, his heirs, executors, administrators or assigns, and the mortgage was assigned, and the legal estate conveyed by the heir of the assignee to a trustee in trust for the administrator of the assignee, it was held that the admin- istrator could exercise the power of sale (/). Where a mortgage, made to trustees of a marriage settle- ment, contained a power of sale which was not in conformity with the Short Forms of Mortgages Act, and the mortgage was on the resignation of the trustees assigned to a new trustee appointed in their place, it was held that the new trustee stood in the place of the former trustees and could exercise the power of sale, not as assignee of the estate, but as if appointed a trustee by the deed creating the trust (g). (e) Rodburn v. Swinney, 1889, 16 Can. S.C.R. 297. (/) Saloway v. Strawbridge, 1885, 1 K. & J. 371, 7 DeG. M. & G. 594. (g) Re Gilmour and White, 1887, 14 O.R. 694. 336. WHO MAY EXERCISE THE POWER. 649 Prior to 1st of July, 1886, the survivor of two or more mortgagees could not exercise the power of sale unless the mortgage contained an express declaration that the loan was made out of moneys belonging to the mortgagees on a joint account (h), but where after 1st of July, 1886, a mortgage is made to more persons than one jointly and not in shares, the mortgage money is deemed to be money belonging to the mortgagees on a joint account, unless a contrary intention is expressed in the mortgage (i) ; and the survivor or sur- vivors of the mortgagees may exercise the power of sale. Where a mortgage is made to several mortgagees to secure distinct sums advanced by them, it would appear that all the surviving mortgagees and the personal representatives of de- ceased mortgagees must concur in exercising the power of sale, unless the mortgage contains a provision that the power may be exercised by one or more of the mortgagees or by the sur- vivor or survivors (j). If the first and the second mortgagees have powers of sale both may concur in selling (k), and a mortgagee of a life es- tate may concur with a mortgagee of the remainder in selling \ the fee simple in possession (I). 337. When the power may be exercised. In England under Lord Cran worth's Act (rn) a mortgage could not sell until after the expiration of one year from the time when the principal had become payable or unless interest was in arrear for six months, or unless there had been a breach of a covenant to insure against fire. Similar limitations are (TO Hind v. Poole, 1855, IK. & J. 383. (i) R.S.O. 1914, c. 133, s. 4. See chapter 13, Persons entitled on Death of the Mortgagee, 124. 0') Cf. Coote, Law of Mortgages, 8th ed., p. 915. (fc) McCarogher v. Whieldon, 1864, 34 Beav. 107. (0 In re Cooper and Allen's Contract, 1876, 4 Ch.D. 802. ' (m) 23 & 24 V. c. 145. See 332, stipra. 650 CHAPTER XXXI. SALE UNDER POWER OF SALE. expressed in Ontario in the statutory power contained in the Mortgages Act (n), except that the default in payment of principal need only be for four months. The notice may, how- ever, be given at any time after any default in making a pay- ment provided for by the mortgage. The English Conveyanc- ing Act, 1881, confers a power of sale, "when the mortgage money has become due," but the power of sale is subject to cer- tain conditions already mentioned (o). A notice served by a mortgagee, after the mortgage money has become payable, requiring payment at the expiration of three months from the date of the notice, is a good notice un- der s. 20 of the Conveyancing Act, 1881. The three months default in payment mentioned in the section begins to run from the service of such a notice, not from the date fixed by the notice for payment (p). In the case of an express power of sale, the time when the power may be exercised will be governed by the terms of the power. Where the power of sale was in these words: "Provided that the mortgagees, on default of payment for three months,, may enter on and If ase or sell the lands without notice, ' ' and a covenant followed: "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,'^ it was held, in an action by the mortgagors to set aside the sale, that the mortgagees were not bound -to wait until default had been made for three months before serving the notice, in other words that the month's notice might be concurrent with the default (q). Where, however, the power of sale provided (n) See 332, supra. (o) See 332, supra. (p) Barker v. Illingworth, [1908] 2 Ch. 20, distinguishing Sel- wyn v. Garfit, 1888, 38 Ch.D. 273. (g) Grant v. Canada Life Assurance Co., 1881, 29 Gr. 256. 337. WHEN THE POWER MAY BE EXERCISED. 651 that after default of payment for one month and upon one month 's notice of sale the land might be sold, it was held that the default and the notice could not run concurrently (r). It has been held that the mortgagee may enter into an agreement for sale before the power of sale is exercisable, if it is not to be carried into execution until the power becomes exercisable (s). It is not unusual, where a new mortgagee is advancing money for the purpose of paying off persons entitled to old securities, to take an assignment of the old securities so as to keep them alive as a protection to the new mortgagee against encumbrances which may have been made by the mortgagor in the interval between the old securities and the new mort- gage. Where, upon the making of a new advance and the taking of new security, it was recited that the power of sale under an earlier mortgage ' ' has not been and is not intended to be exercised," it was held that the power of sale was not destroyed, but that all that was meant by the recital was that the power of sale had not been exercised and that it was not intended to exercise it at present, or for a certain time, or in any manner inconsistent with the stipulations connected with the new advance (). If sale proceedings are begun in consequence of the mort- gagor's default in payment of an instalment of interest, and the principal has become due by virtue of an acceleration clause in the short form contained in schedule B to the Short Forms of Mortgages Act, so that the relieving provision in the corresponding extended form is available to the mortgagor, the latter may pay the instalment in arrear and become en- (r) Gibbons v. McDougall, 1879, 26 Gr. 214. (s) Farrar v. Farrars, 1888, 40 Ch.D. 395; Major v. Ward, 1847, 5 Hare 598. (O Boyd v. Petrie, 1872, L.R. 7 Ch. 385, 14 R.C. 760. 652 CHAPTER XXXI. SALE UNDER POWER OF SALE. titled to have the sale proceedings stayed () On the other hand where the mortgagee on default in payment of an in- stalment gives notice to the mortgagor requiring payment of the whole debt, he is not entitled to withdraw the notice without the consent of the mortgagor (v). A sale under the power of sale is a " proceeding ' ' to recover out of land money secured by mortgage, within the meaning of s. 24 of the Limitations Act, and the mortgagee 's right to sell will be barred after the expiration of ten years from the time when the right to receive the mortgage money accrued or from the time of the last payment or acknowledgemnt (w). The defendants advertised an auction sale of mortgaged lands situate near Kincardine to take place there on January 19th. At eleven a.m. on January 17th the mortgagor tele- graphed to the defendants at Toronto to inquire the amount required to redeem it and the defendants telegraphed a reply. At 10 a.m. on January 19th the defendants received at To- ronto the amount named, but in accordance with their office procedure, the accountant was not aware of this till about eleven a.m., when knowing the property was up for sale, he telegraphed and telephoned the fact to Kincardine. The sale had, however, been made a few minutes before to the plain- tiff. The defendants then returned the money to the mort- gagor. It was held that the plaintiff was entitled to specific performance, for the mortgagor had not tendered the amount such reasonable time before the sale as to make it obligatory on the defendants to receive it in payment (x). (it) Todd v. Linklater, 1901, 1 O.L.R. 103. See chapter 23, Action on the Covenant, 226. (v) Santley v. Wilde, [1899] 1 Ch. 747, at p. 763, S. C. reversed on another point, [1899] 2 Ch. 474. (w) McDonald v. Grundy, 1904, 8 O.L.R. 113. See chapter 26, Limitation of Actions, 264. (#) Gentles v. Canada Permanent and Western Canada Mortgage Corporation, 1900, 32 O.R. 428. 338. POWER OF SALE WITHOUT NOTICE. 653 338. Power of sale without notice. It has sometimes been said that a power of sale without notice is oppressive (y), but the validity of such a power has long been established (2). It is reasonable and not unusual for a mortgagee who has a power of sale without notice never- theless to give notice to the persons equitably interested. The fact that the mortgagee gives notice to such persons or some of them will not prevent him from relying upon his power of sale without notice, where, for instance, there is also a power of sale after notice and the sufficiency of the notice or notices given is attacked (a). It is usual to insert in the mortgage a power of sale after a certain default and upon notice, and a further power of sale without notice after a longer period of default (6). Where a deed, absolute in form, is taken as security for a debt, it has been held that the grantee has no power of sale, unless indeed a statutory power of sale can be imported into the deed ; nor can the mortgagee foreclose ; he holds the land as trustee, and his only remedy, in" the absence of the con- currence of the mortgagor, is to have a sale through the court (c). The grantee in such case might, however, confer a good title upon a purchaser in good faith without notice (y) Miller v. Cook, 1870, L.R. 10 Eg. 641, at p. 647; Re Gil- Christ and Island, 1886, 11 O.R. 537, at p. 539. (z) Re British Canadian Loan and Investment Co. and Ray, 1888, 16 O.R. 15, at p. 16; cf. a series of articles and letters in 13 C.L.T. 36, 279 (Jan., Dec., 1893), 14 C.L.T. 47 (Feb. 1894), 15 C.L.T. 1, 40, 112 (Jan., Feb., April, 1895); Clark v. Harvey, 1888, 16 O.R. 159; Canada Permanent Building Society v. Teeter, 1889, 19 O.R. 156; Barry v. Anderson, 1891, 18 O.A.R. 247. (a) Re British Canadian Loan and Investment Co. and Ray, supra; Uren v. Confederation Life Association, 1917, 40 O.L.R. 536. (6) A special form of power of sale without notice is suggested in 333, supra. As to the care to be exercised in making alterations in the short form of power of sale, see 335. (c) Hetherington v. Sinclair, 1915, 34 O.L.R. 61, 23 D.L.R. 630; following Pearson v. Benson, 1860, 28 Beav. 598; cf. however, Ham- ilton v. York and Baldry, 1913, 13 D.L.R. 3 (Alta). 654 CHAPTER XXXI. SALE UNDER POWER OF SALE. of the grantor's equitable rights. It has also been held that where land is granted by deed absolute in form upon an oral trust, not to hold the property as security, but to sell the property and out of the proceeds to pay the money "due to the trustee and other persons with a resulting trust as to any sur- plus, the trustee may sell without notice to the person equit- ably entitled, and such sale would be valid even if the trust for sale were set out in the deed (d). 339. Form and service of notice. It depends upon the terms of the power of sale whether no- tice of exercising the power need be given or by whom or to whom, when and in what manner notice need be given (e). If notice is required to be given, but the length of notice is not specified, it would seem that reasonable notice would be such as to give the mortgagor sufficient time in which to get the money (/). The intention to sell should be distinctly stated in the notice. Where the notice stated only that unless payment should be made proceedings would be instituted to obtain pos- session, it was held that the notice was insufficient to support a sale (g). It is also provided in the Mortgages Act, R.S.O. 1914, c. 112, s. 28, as f ollows : - 28. A notice of exercising a power of sale shall state the amounts claimed to be due for principal, interest and costs respectively. In the case of a sale under the statutory power of sale (d) Oland v. McNeil, 1901, 32 Can. S.C.R. 23. (e) See statutory implied power of sale (332); contractual power of sale (333); statutory short form of power of sale and qualifications thereof (334, 335); who may exercise the power (336); when the power may be exercised (337); power of sale without notice (338). (/) Cf. Moore v. Shelley, 1883, 8 App. Cas. 285, at p. 293. (0) Bartlett v. Jull, 1880, 28 Gr. 140. 339. FORM AND SERVICE OF NOTICE. 655 implied in certain circumstances under the Mortgages Act, a specified form of notice is prescribed' (7i). It is a frequent practice to use this form in other cases, although it is not necessary to do so. It is not essential that any signature should appear at the foot or end of the notice, but it is essential that the identity of the person giving the notice should appear in the notice (t), and that the notice should be a complete, and not an obviously incomplete document. Where a notice did not show that it was given by or on behalf of the mortgagee and was not signed, it was held invalid (j). A notice given in the name of the mortgagee and signed by his solicitor is sufficient (ft). A notice should be addressed to the person to be served, "but the fact that it is not so addressed is not a fatal defect if it is served upon such person (). The service of notice upon an agent of the mortgagor was held to be effective where the notice was in fact forwarded by the agent to the mort- gagor and was received in due time by the latter who made no objection to the notice or the service (m). The mode of giving notice prescribed by the power of sale should be strictly observed. In a case where the power re- quired that notice should be given to the mortgagor, his heirs, executors or administrators, and notice was served upon the widow and administratrix of the mortgagor, addressed to her as widow, and not upon the heir, a child three years of age, it was held that the notice of sale should have been served (ft) See 332, supra. (?') It has been held, however, that an unsigned notice accom- panied by a signed letter is sufficient. Lockhart v. Yorkshire Guar- antee and Securities Corporation, 1908, 14 B.C.R. 28. (;) Ansell v. Bradley, 1916, 37 O.L.R. 142, 31 D.L.R. 297. (fc) Fenwick v. Whitwam, 1901, 1 O.L.R. 24. (0 Ansell v. Bradley, supra; Doe dem Matthewson v. Wright, 1801, 4 Esp. 5. (m) Fenwick v. Whitwam, supra. 656 CHAPTER XXXI. SALE UNDER POWER OF SALE. upon both the heir and the administratrix, the disjunctive con- junction referring only to the personal representatives and not to them and the heirs (n). Spragge, C. said (0) : "I find no case in which it has been held, or in which it has been contended, that where, by the terms of a 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, 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 atten- tion 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." The short form of power of sale contained in schedule B to the former Short Forms of Mortgages Act (p) provided for notice to be given to the mortgagor, his heirs or assigns, but the form referred to in the present statute (q) provides for service on the mortgagor, his heirs, executors, administrators or assigns. Under the earlier form of power it was held that if the estate had become vested in the heirs by virtue of the Devolution of Estates Act (r), service upon the personal representatives was not necessary (s), but under the present form of power it would seem advisable if not necessary to serve both the heirs and the personal representatives () (n) Bartlett v. Jull, 1880, 28 Gr. 140. (o) 28 Gr. at p. 143. In the case of the statutory implied power of sale special provision is made by the Mortgages Act for service upon an infant who succeeds to the title of a mortgagor (see 332), but this provision has no application to an express power of sale. Re Martin and Merritt, 1901, 3 O.L.R. 284. (p) R.S.O. 1897, c. 126, superseded by 10 E. 7, c. 51. (q) R.S.O. 1914, c. 117. See 334, supra. (r) See chapter 17, Persons entitled on Death of the Mortgagor, 162. (s) Re Martin and Merritt, 1901, 3 O.L.R. 284. (t) Cf. Bartlett v. Jull, supra. 339. FORM AND SERVICE OF NOTICE. 657 Clearly, so long as the estate is vested in the personal repre- sentatives, service upon them is necessary, as they are deemed in law the heirs of the mortgagor (u). The wife of a mortgagor who has joined in a mortgage to bar her dower is not an "assign" of her husband, and is not, in her husband's lifetime, entitled to notice under a power of sale which requires notice to be served upon the mortgagor or his assigns (v). A sale under a power requiring notice to be given will not be valid if there is no person in existence to whom notice can be given : if, therefore, the terms of the power require that notice shall be served upon the personal representative of the mortgagor, the power will not be exercisable until one is ap- pointed (w). The purchaser of the equity of redemption is entitled to notice, and where the equity of redemption has been sold in several parcels to different persons who are entitled to redeem in respect of their own parcels, these different persons are en- titled to notice (x). If the power requires notice to be given to the mortgagor or his assigns, and there is a second mortgage made by the mortgagor, it is not sufficient to give notice to the mortgagor alone, but the second mortgagee also is entitled to notice, and may recover damages from the first mortgagee if he exer- cises the power of sale without giving such notice. The words are to be read as meaning "the mortgagor and his assigns" (w) See s. 7 of the Devolution of Estates Act, quoted in chapter 13, Persons entitled on Death of the Mortgagee, 123. (v) Re Martin and Merritt, supra; Girardot v. Curry, 1916, 38 O.L.R. 350, 33 D.L.R. 272. (w) Parkinson v. Hanbury, 1867, 1 Dr. & Sm. 143, 2 DeG. J. & S. 152, L.R. 2 H.L. 1, 18 R.C. 411. (x) Buckley v. Wilson, 1861, 8 Gr. 566. (y) Hoole v. Smith, 1881, 17 Ch.D. 434. 658 CHAPTER XXXI. SALE UNDER POWER OF SALE. The plaintiff had entered into an agreement in writing with the second mortgagee and the mortgagor whereby he was entitled to enforce a transfer of all their interest to him. The first mortgagee, with express notice of this agreement, made a sale under the power in his mortgage, without giving notice to the plaintiff. It was held that the plaintiff was en- titled to notice and the sale was set aside (z). If the owner of lands makes a lease and subsequently mort- gages the lands the mortgagee is in the position of assignee of the reversion on the lease and takes the lands subject to the lease. If, however, the mortgagor after making the mort- gage leases the lands, the lessee is a purchaser of the equity of redemption pro tanto and is entitled to redeem. He is therefore entitled to notice of sale (a). Execution creditors of the mortgagor, whose writs are in the sheriff's hands at the time of giving notice of sale to the mortgagor, are assigns and as such are entitled to notice (&). Execution creditors of the mortgagee are not entitled to notice of sale (c). They have, however, such an interest in the due exercise of the power that the court will grant them relief against a mortgagee exercising the power to their disadvant- age (d). Where mortgagees sold the mortgaged premises with- out notice to a person who was surety for a part of the debt, it was held that they were liable as between themselves and the surety for the full value of the property (e). (z) Stewart v. Rowson, 1892, 22 O.R. 533. (a) Tarn v. Turner, 1888, 39 Ch.D. 456; see Anderson v. Steven- son, 1888, 15 O.R. 563; Martin v. Miles, 1883, 5 O.R. 404; Collins v. Cunningham, Cunningham v. Drysdale, 1892, 21 Can. S.C.R. 139 at p. 149. (6) Re Abbott and Medcalf, 1891, 20 O.R. 299. (c) But see Sanderson v. Ince, 1859, 7 Gr. 383. (d) Commercial Bank v. Watson, 1859, 5 U.C.L.J. 163. (e) Martin v. Hall, 1878, 25 Gr. 471. 339. FORM AND SERVICE OF NOTICE. 659 If the person to be served is a lunatic service upon him is nevertheless valid; it is unnecessary to provide that the notice shall be valid in such case (/). If a trustee has not sufficient funds in his hands to enable him to redeem he will not properly represent his cestui que trust. In that case the cestui que trust should be served with notice for he is of course interested in the equity of redemp- tion and may be in a position to redeem (g). Notice need be given only to the mortgagor or those claim- ing under him. If there is a mortgage paramount to the mortgage under which the power of sale is being exercised it is not necessary to notify the paramount mortgagee, but the sale will be subject to his claim. Where a mortgagor took lands by a conveyance which was void as against creditors, and then conveyed to the mortgagee without notice, and the conveyance to the mortgagor was subsequently set aside as against creditors, it was held that the mortgagee need not give notice to the creditors of the mortgagor, the mortgage being paramount to their title, even although the creditors might have a right to redeem and to require an account of the pro- ceeds of the sale (ft). The mortgagor or his assigns may waive the right to no- tice. Such waiver may be either express or implied from conduct; but mere delay or inaction is not waiver (i). A mortgagor cannot waive notice as against an assignee from him of the equity of redemption (.;'). (/) Tracy v. Lawrence, 1854, 2 Dr. 403. A notice of dissolution of partnership properly given under the articles is good, though the partner served be insane; Robertson v. Lockie, 1846, 15 Sim. 285. (flr) See Goldsmid v. Stonehewer, 1852, 9 Hare App. xxxviii; Mills v. Jennings, 1880, 13 Ch.D. 639, S.C. 6 App. Cas. 693. (7i) Major v. Ward, 1847, 5 Hare 598. (t) Selwyn v. Garfit, 1888, 38 Ch.D. 273; In re Thompson and Holt, 1890, 44 Ch.D. 492. (j) Forster v. Hoggart, 1850, 15 Q.B. 155; Selwyn v. Garflt, 1888, 38 Ch.D. 273. 660 CHAPTER XXXI. SALE UNDER POWER OF SALE. Where the power of sale provided that the notice should be given to the mortgagor, his heirs, executors, administrators or assigns, or left at his or their usual or last known place of abode, and the notice was fixed to the door of the last known place of abode, this was held to be valid service as against the creditors of the mortgagor (k). According to the extended power of sale which is the equivalent of the short form of power of sale under the Short Forms of Mortgages Act (I) notice of exercising the power of sale must be given to the mortgagor, his heirs, executors, administrators or assigns either personally or at his or their usual or last place of residence within the province. It has been held that the statute permits substitutional service at the usual place of residence of the mortgagor although he may be within the province (m). Three modes of service are permitted by the statute: (1) personal service on the mort- gagor; (2) service by leaving the notice at the mortgagor's usual place of residence within the province; and (3) service by leaving the notice at the mortgagor's last place of residence within the province (w). A difficulty may arise where personal service cannot be effected and the mortgagor has no usual place of residence within the province, and where further the mortgagor's last place of residence within the province is not known. To meet this difficulty, a special clause may be inserted providing for alternative modes of service (o). It is provided by the Registry Act, R.S.O. 1914, c. 124, s. 58, as follows : (fc) Major v. Ward, 1847, 5 Hare 598. (0 For the text of the short form and the corresponding ex- tended form, see 334, supra. (m) O'Donohoe v. Whitty, 1882, 2 O.R. 424, referring to Major v. Ward, 1847, 5 Hare 598; affirmed in Court of Appeal on another ground: 20 C.L.J. 146. (n) Per Boyd, C., O'Donohoe v. Whitty, 1882, 2 O.R. 424, at p. 430. (o) See special form of power suggested in 333, supra. 339. FORM AND SERVICE OF NOTICE. 661 58. (1) A notice of sale of land under the provisions of The Mortgages Act, and a notice of exercising the power of sale con- tained in any mortgage, and the affidavit or declaration of service thereof may be registered, and the same shall be registered in the same manner as an instrument affecting land, but it shall not be necessary to record the notice or the affidavit or declaration of ser- vice attached thereto in the registry book. (2) The affidavit or declaration shall be made by the person who served the notice, and shall prove the time, place and manner of such service, and that the copy delivered to the registrar is a true copy of the notice served. (3) A copy of the registered notice and affidavit or declaration certified under the hand and seal of office of the registrar shall be ftrima facie evidence of the service of the notice as stated in the affidavit or declaration (p). (4) Where the person who served the notice is dead or out of Ontario, or where it is proved to the satisfaction of a Judge of a County or District Court, that the place of abode of such person is unknown, or that he is incapable of making an affidavit or declar- ation of service, or where service of such notice has been or is duly admitted any person who is or who claims to be interested in the registration of the notice may make proof before the judge of the service of the notice, and upon a certificate of such judge endorsed on or attached to the notice and signed by him to the effect that from the proof adduced by the person producing the proof, naming him, he is satisfied of the due service of the notice, the registrar shall register the notice and certificate. (5) Where the notice cannot be produced to be registered any person who is or who claims to be interested in the registration of the notice may make proof before the judge of the service thereof, and of the inability to produce the same, and upon depositing a cer- tificate of such judge to the effect that from the proof adduced by the person producing the proof, naming him, he is satisfied of the due service of the notice upon the person served, naming him, and that the same cannot be produced the registrar shall register the certificate, and a copy of such certificate under the hand and seal of the registrar shall be prima facie evidence of the facts therein stated (q). (6) Where a notice of sale 01 a certificate of a judge under sub- sections 4 or 5 has been registered, the same may be registered in any other registry office by depositing a copy thereof, certified in the manner provided by section 44. (p) Cf. Re Winberg and Kettle, 1917, 12 O.W.N. 327. (Q) See Girardot v. Curry, 1917, 38 O.L.R. 350, 33 D.L.R. 272. 662 CHAPTER XXXI. SALE UNDER POWER OF SALE. 340. Concurrent proceedings ~by the mortgagee. A mortgagee may combine in one action claims for fore- closure or sale, for possession of the mortgaged land and for payment of the mortgage money (r). A mortgagee who has brought an action to recover the mortgage money and for possession of the mortgaged land may also exercise the power of sale. There is nothing inconsistent in the two proceedings. Possession will be needed in the event of a sale being made. The amount realized from the sale must be applied towards payment of the mortgage debt. If enough is realized from the sale, the claim upon the covenant to pay will be satisfied; if the proceeds of the sale are in- sufficient, the personal judgment for the unsatisfied amount will be needed (s). If, however, a demand or notice is made or given within the meaning of s. 29 of the Mortgages Act, mentioned below, further proceedings in the action will be stayed until after the lapse of the time at or after which, ac- cording to such demand or notice, payment of the money is to be made or the power of sale is to be exercised. On the other hand, a mortgagee cannot, after the usual order nisi for foreclosure and before the foreclosure is made absolute, exercise his power of sale without the leave of the court, because a sale would prejudice the rights given to the mortgagor by the court under the direction in the judgment for reconveyance on payment, but the power of sale is sus- pended only, not extinguished, and a purchaser in good faith without notice may get a good title (t). A company being in liquidation, the mortgagees went into possession prior to the issue of the winding-up order. On an application to restrain the mortgagees from selling under their (r) See chapter 22, Action for Possession, 211. (s) Shields v. Shields, 1918, 43 O.L.R. 117. (t) Stevens v. Theatres, [1903] 1 Ch. 857; cf. DeBeck v. Canada Permanent Loan and Savings Co., 1907, 12 B.C.R. 409. 340. CONCURRENT PROCEEDINGS. 663 security, objection was taken that the attendance of the mort- gagees on the application and the approving of the winding-up order was such a taking part in the winding-up as gave th6 court jurisdiction to restrain them. This objection being over- ruled, the liquidator sought to restrain the mortgagees from selling without the sanction of the court on the ground that such sale would be a "proceeding against the company" un- der s. 22 of the Winding-up Act, R.S.C. 1906, c. 144. It was held that the mortgagees were proceeding rightfully (u). It is also provided by the Mortgages Act, R.S.O. 1914, c. 112, ss. 29 and 30, as follows : 29. (1) Where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the money secured by such mortgage, or any part thereof, or declaring an intention to proceed under and exercise the power of sale therein contained, no further proceeding and no action either to enforce such mortgage, or with respect to any clause, covenant or provision therein contained, or to the mortgaged property or any part thereof, shall, until after the lapse of the time at or after which, according to such demand or notice, payment of the money is to be made or the power of sale is to be exercised or proceeded under, be commenced or taken unless and until an order permitting the same has been obtained from a Judge of the County or District Court of the county or district in which the mortgaged property or any part thereof is situate, or from a Judge of the Supreme Court. (2) The order may be obtained ex parte upon such proof as satisfies the Judge that .it is reasonable and equitable that the proposed action or proceeding should be permitted. (3) This section shall not apply to proceedings to stay waste or other injury to the mortgaged property. 80. (1) Where such demand or notice requires payment of all money secured by or under a mortgage the person making such demand or giving such notice shall be bound to accept and receive payment of the same if made as required by the terms of such demand or notice. (2) If there is a dispute as to the costs payable by the person by or on whose behalf such payment is either made or tendered such costs shall, on three clear days' notice to such person by the person claiming the same, be taxed and ascertained by the Clerk of the (u) Re British Columbia Tie and Timber Co., 1908, 14 B.C.R. 81. 664 CHAPTER XXXI. SALE UNDER POWER OF SALE. County or District Court, or by the Local Master of the county or district in which the mortgaged property or any part thereof is situate. (3) If within ten days after the costs have been so taxed and ascertained, payment of such money and costs is duly made or tendered to the person entitled thereto, or to his solicitor or agent, the same shall be deemed a compliance with such demand or notice. (4) A mortgagee's costs of and incidental to the exercise of a power of sale, whether under this Part or otherwise, may, without an order, be taxed by one of the taxing officers- of the Supreme Court at Toronto or by a local master having jurisdiction in the county or district in which the mortgaged property or any part of it is situate at the instance of any person interested. Where a notice of exercising the power of sale was dated 2nd of May and a writ claiming payment under the covenant was issued on 3rd of May, and both notice and writ were served on 3rd of May, it was held that the issue of the writ was a further proceeding within the meaning of the statute, and an order was made setting aside the service of the writ and staying all proceedings in the action (v). An action was commenced to enforce payment under the covenant and notice of motion for summary judgment was given. Before the return of the motion the mortgagee served notice of exercising the power of sale unless the mort- gage moneys should be ^paid within thirty days, but- subse- quently gave notice of abandonment of the notice of sale. It was held that the mortgagee was bound by the notice of sale, and the proceedings in the action were stayed for the thirty days named therein (w). An advertisement for sale is a proceeding within the mean- ing of the words "no further proceeding;" and where a mortgagee served a notice stating that unless payment should be made within a month from service the mortgagee would pro- ceed to sell, an injunction was granted restraining the mort- (v) Perry v. Perry, 1884, 10 O.P.R. 275. (M?) Lyon v. Ryerson, 1897, 17 O.P.R. 516. 340. CONCURRENT PROCEEDINGS. 665 gagee from publishing an advertisement of sale until after the expiration of the month (x). Proceedings will be stayed only "where, pursuant to any condition or proviso contained in a mortgage, there has been made or given a demand or notice either requiring payment of the moneys secured by such mortgage, or any part thereof, or declaring an intention to proceed under and exercise the power of sale"; and the statute does not apply where the power of sale is exercisable without any notice (y}. 341. Conduct of the sale. A mortgagee exercising a power of sale is not a trustee for the mortgagor except as regards the surplus of the purchase money arising from the sale after the mortgage debt is satis- fied. This is so whether the mortgage is in the ordinary form or by way of trust for sale (z). "A mortgagee having a power of sale cannot, as between himself and the mortgagor, exercise it in a manner merely arbitrary, but is as between them bound to exercise some discretion; not to throw away the property, but to act in a prudent and business-like manner, with a view to obtain as large a price as may fairly and reasonably, with due diligence and attention, be under the circumstances obtain- able." (a). "A mortgagee with a power of sale, though often called a trustee, is in a very different position from a trustee for sale. A mortgagee is under no obligations to the mortgagor, but he has rights of his own which he is entitled to exercise adversely to the mortgagor. A trustee for sale has no business to place himself in such a position as to give (x) Smith v. Brown, 1890, 20 O.R. 165. The original statute 47 V. c. 16, s. 1 provided that no further proceedings at law or in equity should be taken. The words in italics were omitted from R.S.O. 1887, c. 102, s. 30. (y) Canada Permanent Building Society v. Teeter, 1889, 19 O.R. 156. (z) Kirkwood v. Thompson, 1865, 2 H. & M. 392; Locking v. Parker, 1878, L.R. 8 Ch. 30; In re Alison, Johnson v. Mounsey, 1879, 11 Ch.D. 284. (a) Matthie v. Edwards, 1846, 2 Coll. 465, 10 Jur. 347, S.C. on appeal sub nani. Jones v. Matthie, 11 Jur. 504. 666 CHAPTER XXXI. SALE UNDER POWER OF SALE. rise to a conflict of interest and duty. But every mortgage confers upon the mortgagee the right to realize his security and to find a purchaser if he can, and if in exercise of his power, he acts bona fide and takes reasonable precautions to obtain a proper price, the mort- gagor has no redress, even although more might have been obtained for the property if the sale had been postponed." (&) "A mortgagee is not a trustee of a power of sale for the mort- gagor at all; his right is to look after himself first. But he is not at liberty to look after his own interest alone, and it is not right, or proper, or legal for him, either fraudulently, or wilfully, or reck- lessly, to sacrifice the property of the mortgagor; that is all." (c) If a mortgagee exercises the power of sale in good faith for the purpose of realizing his mortgage debt, without corrup- tion or collusion with the purchaser, the court will not inter- fere, even though the sale be very disadvantageous, unless the price is so low as in itself to be evidence of fraud (d). If, however, he acts "fraudently, or wilfully, or recklessly" (d 2 ) or if by reason of his "wilful negligence and default" the land is sold at an undervalue (d 3 }, he will be chargeable with the full value of the land. The effect of the decisions is "to displace the test of a prudent man dealing with his own prop- erty, in favour of a somewhat lesser degree of responsibility. ' r (d 4 }. Under the extended form of power of sale provided by the Short Forms of Mortgages Act (e) it is stipulated that the (6) Farrar v. Farrars, 1888, 40 Ch.D. 395, at p. 410. See also Cholmondeley v. Clinton, 1820, 2 J. & W. 1 at p. 182; Davey v. Durrant, 1857, 1 De G. & J. 535. (c) Kennedy v. De Trafford, [1896] 1 Ch. 762, at p. 772, affirmed [1897] A.C. 180. (d) Warner v. Jacob, 1882, 20 Ch.D. 220, 18 R.C. 452; Hadding- ton Island Quarry Co. v. Huson, [1911], A.C. 722; Kaiserhof Hotel Co. v. Zuber, 1912, 46 Can. S.C.R. 651, 9 D.L.R. 877, affirming 25 O.L.R. 194. (d2) Kennedy v. De Trafford, supra; British Columbia Land and Investment Agency v. Ishitaka, 1911, 45 Can. S.C.R. 302, at pp. 316, 317. (), even though the mortgagee has paid him- self all his interest and costs out of rents and profits received (w). A receiver may be appointed if the mortgagor prevents the mortgagee from taking possession (x). The right to propose a person as receiver belongs gener- ally to the mortgagee applying to have the appointment made. A party to the action will not usually be appointed receiver ; if appointed he will not be allowed a salary (y). The soli- citor for the mortgagee will not be appointed receiver because it is one of the duties of the mortgagee's solicitor to check the receiver's accounts (2). (s) Originally enacted by s. 17 (8) of the Ontario Judicature Act, 1881, and in England by s. 25 (8) of the Judicature Act, 1873, (*) Pease v. Fletcher, 1875, 1 Ch.D. 273; In re Pope, 1886, 17 Q.B.D. 743, at p. 749, 10 R.C. 592, at p. 598. (u) In re Prytherch, Prytherch v. Williams, 1889, 42 Ch.D. 590. See chapter 28, Mortgagee in Possession, 301. (v) Tillet v. Nixon, 1883, 25 Ch.D. 238; County of Gloucester Bank v. Rudry Merthyr, etc., Colliery Co., [1895] 1 Ch. 629. (w) Mason v. Westoby, 1886, 32 Ch.D. 206. (x) Truman & Co. v. Redgrave, 1881, 18 Ch.D. 547. (I/) Sargant v. Read, 1876, 1 Ch.D. 600. (z) In re Lloyd, Allen v. Lloyd, 1879, 12 Ch.D. 447. 690 CHAPTER XXXII. APPOINTMENT OF RECEIVER. If the mortgagor carries on business on the mortgaged premises, a receiver of the rents and profits of the property appointed at the instance of the mortgagee will not be also appointed manager of the business unless the business or its goodwill is expressly or impliedly included in the mortgage security (a), 353. Mortgagee's statutory or express power to appoint. In England it is provided by the Conveyancing Act, 1881, (b), as follows: 19. (1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely): (iii) A power, when the mortgage money has become due, to appoint a receiver of the income of the mortgaged property, or of any part thereof. 24. (1) A mortgagee entitled to appoint a receiver under the power in that behalf conferred by this Act shall not appoint a receiver until he has become entitled to exercise the power of sale conferred by this Act (c), but may then, by writing under his hand, appoint such person as he thinks fit to be receiver. (2) The receiver shall be deemed to be the agent of the mort- gagor; and the mortgagor shall be solely responsible for the re- ceiver's acts or defaults, unless the mortgage deed otherwise pro- vides. (3) The receiver shall have power to demand and recover all the income of the property of which he is appointed receiver, by action, distress, or otherwise, in the name either of the mortgagor or of the mortgagee, to the full extent of the estate or interest which the mortgagor could dispose of, and to give effectual receipts ac- cordingly for the same. (a) Whitley v. Challis, [1892] 1 Ch. 64T Truman & Co. v. Redgrave, 1881, 18 Ch.D. 547; County of Gloucester Bank v. Rudry Merthyr, etc. Colliery Co., [1895] 1 Ch. 629; In re Leas Hotel Co., Salter v. The Company, [1902] 1 Ch. 332. (ft) 44 & 45 V. c. 41, replacing Lord Cranworth's Act, 22 & 23 V. c. 145. The section applies only if and so far as a contrary in- tention is not expressed in the mortgage deed. (c) See s. 20 of the statute, quoted in chapter 31, Sale under Power of Sale, 332. 353. STATUTORY OR EXPRESS POWER. 691 (4) A person paying money to the receiver shall not be con- cerned to Inquire whether any case has happened to authorize the receiver to act. (5) The receiver may be appointed, and a new receiver may be appointed, from time to time by the mortgagee by writing under his hand. (6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges, and expenses incurred by him as receiver, a commis- sion at such rate, not exceeding five per centum on the gross amount of all money received, as is specified in his appointment, and if no rate is so specified, then at the rate of five per centum on the gross amount, or at such higher rate as the Court thinks fit to allow, on application made by him for that purpose. (7) The receiver shall, if so directed in writing by the mort- gagee, insure and keep insured against loss or damage by fire, out of the money received by him,' any building, effects, or property comprised in the mortgage, whether affixed to the freehold or not, being of an insurable nature. (8) The receiver shall apply all money received by him as fol- lows, namely: (i) In discharge of all rents, taxes, rates, and outgoings whatever affecting the mortgaged property; and (ii) In keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver; and (iii) In payment of his commission, and of the premiums on fire, life, or other insurances, if any, properly payable under the mortgage deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mort- gagee; and (iv) In payment of the interest accruing due in respect of any principal money due under the mortgage; and shall pay the residue of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of the mortgaged property, or who is other- wise entitled to that property. There is no similar statute in force in Ontario, but a mort- gage sometimes contains an express power to appoint a re- ceiver. The statute merely adopted the practice of convey- ancers in England and set out in a concise and well-considered form that which prior to 1881 had been frequently made the subject of express stipulation (d). (d) White v. Metcalfe, [1903] 2 Ch. 567, at p. 571. 692 CHAPTER XXXII. APPOINTMENT OF RECEIVER. 354. Liability for acts or defaults of receiver. In the case of statutory authority or express authority in a mortgage to appoint a receiver, it is usually provided either that the receiver shall be deemed to be the agent of the mort- gagor (e) or that the appointment shall be made by the mort- gagor, on the nomination of the mortgagee, and if an appoint- ment is made pursuant to such authority, the mortgagor, not the mortgagee, is responsible for the acts or defaults of the receiver, and the mortgagee is not chargeable as a mortgagee in possession (/). A mortgagee may of his own authority appoint a receiver, but in such case the receiver will be the agent of the mort- gagee, who will be deemed to have taken possession and will be liable to account as a mortgagee in possession (g). 355. Powers and liabilities of receiver. If a person is appointed by the court to be receiver and manager of a company, he is not the agent of the company. The company does not appoint him and cannot dismiss him, and he is not bound to obey its directions. Only the' court can dismiss him, or give him directions as to the mode of carrying on the business, or interfere with him if he is not earrying on the business properly. As it is impossible to sup- pose that the relation of agent and principal exists between him and the court, the inference is necessarily drawn that he acts in pursuance of his appointment on his own responsibil- (e) As in s. 24 of the English Conveyancing Act, 1881. See 353, supra. (/) Law v. Glenn, 1867, L.R. 2 Ch. 634, at p. 641; Jefferys v. Dickson, 1866, L.R. 1 Ch. 183, at p. 190; White v. Metcalfe, [1903] i Ch. 567 t at p. 570. (g) Quarrell v. Beckford, 1816, 1 Madd. 269; Leith v. Irvine, 1833, 1 My. & K. 277; Gaskell v. Gosling, [1896] 1 Q.B. 669. As to the liability of a mortgagee in possession, see chapter 28, Mortgagee in Possession. 355. POWERS AND LIABILITIES OF RECEIVER. 693 ity and not as an agent. He has in fact no principal, and if he gives an order to a third person he will render himself personally liable and must himself look for indemnity to the assets of the company, unless he shows that the order was accepted on the terms that he was not to be personally liable but that the third party was to be paid out of the assets of the business, if they should prove sufficient, or that there were other circumstances which took the case out of the general rule (7i). On the other hand if a receiver is appointed under a power in a mortgage or under a statutory power (i) he is the agent of the person appointing him unless by the terms of the mort- gage or the statute he is declared to be the agent of the mort- gagor (j). His powers will be those conferred by the mort- gage or the statute or by the instrument appointing him, and if he makes contracts within the powers conferred upon him, his principal and not he will be liable (fc). (ft) Burt, Boulton & Hay ward v. Bull, [1895] 1 Q.B. 276, 18 E.G. 462; cf. Plumpton v. Burkinshaw, [1908] 2 K.B. 572. (i) See 353, supra, (j) See 354, supra. (fc) Cf. Plumpton v. Burkinshaw, supra. CHAPTER XXXIII. ATTORNMENT AND DISTRESS. 361. Express power to distrain, p. 694. 362. Tenancy created by attornment, p. 696. 363. Distress in case of attornment, p. 700. 364. On what goods the mortgagee may distrain, p. 705. 365. What arrears may be recovered by distress, p. 709. 366. Attornment under the Land Titles Acts, p. 710. 361. Express power to distrain. The right of the mortgagee to distrain on the lands of the mortgagor for arrears of interest or of principal does not arise from the relation of mortgagor and mortgagee and is not incident thereto. There are two modes by which this right may be given to the mortgagee, firstly, by a stipulation in the mortgage that the mortgagee may distrain ; and secondly, by a provision creating the relation of landlord and tenant be- tween the parties. In the latter case the right to distrain arises by implication as incident to the relation of landlord and ten- ant (a). No particular form of words is necessary to give the mort- gagee the right to distrain. The mortgage may provide that the mortgagee may distrain for all the mortgage moneys, prin- cipal as well as interest, and this without regard to the value of the land and whether the goods are on the mortgaged prem- ises or elsewhere. As between the parties such a stipulation is valid (&). (a) For an instructive discussion of the rights of a mortgagee in regard to distress, see articles by A. H. Marsh in 6 C.L.T. pp. 217, 265 and 313 (May, June, July, 1886). (6) Hobbs v. The Ontario Loan and Debenture Company, 1890, 18 Can. S.C.R. 483, at p. 552. 361. EXPRESS POWER TO DISTRAIN. 695 In Ontario the usual practice is to insert in a mortgage the short form of distress clause provided by the Short Forms- of Mortgages Act (c), as follows: Provided that the mortgagee may distrain for arrears of in- terest. If the mortgage is expressed to be made in pursuance, of the statute the foregoing clause has the same effect as if it were in the following terms (d) : And it is further covenanted, declared and agreed by and between the parties to these presents, that if the said mortgagor, his heirs, executors, or administrators, shall make default in payment of any part of the said interest at any of the days or times hereinbefore limited for the payment thereof, it shall and may be lawful for the said mortgagee, his heirs, executors, administrators or assigns, to distrain therefor upon the said lands, tenements, hereditaments and premises, or any part thereof, and, by distress warrant, to recover by way of rent reserved, as in the case of a demise, of the said lands, tenements, hereditaments and premises, so much of such 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. It would seem under the statutory clause that the mort- gagee may exercise his right to distrain at any time whether before or after the maturity of the mortgage debt or of any in- stalment thereof, but only arrears of interest which have ac- crued before the maturity of the mortgage debt can be dis- trained for in cases where there is no provision in the mort- gage for payment of interest after maturity. In such cases the interest payable after maturity of the principal would be recoverable, not by the terms of the contract, but as damages, and the right to distrain under the statutory clause is given only where the mortgagor makes default in payment at the time limited therefor (e). (c) R.S.O. 1914, c. 117, schedule B, clause 15. (d) See chapter 35, Short Forms of Mortgages Act, 381. (e) Klinck v. Ontario Industrial Loan and Investment Co.,. 1888, 16 O.R. 562; Powell v. Peck, 1888, 15 O.A.R. 138. 696 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. The clause above mentioned operates simply as a personal license from the mortgagor to the mortgagee rendering it law- ful for the latter to distrain upon the goods of the former, and does not create the relation of landlord and tenant (/), even when it is read along with the so-called redemise Clause by .which the mortgagor is entitled to possession until default (g), there being no reservation of rent and no redemise for a definite term (7t). A mere license to distrain cannot be exercised by the as- signee of the mortgagee unless the assigns of the mortgagee are named in the license, nor can the assignee distrain for arrears of rent which accrued due before the assignment, even if the assigns are named (i). A mortgagee having made a first seizure for arrears of interest and abandoned the seizure cannot seize a second time for the same demand. A seizure for more than is due is illegal (;'). The effect of the mortgagee's distraining is that the debt in respect of which the distress is made is suspended so long as the mortgagee holds the goods in his hands unsold (&). 362. Tenancy created by attornment. It is well settled that the parties to a mortgage of real property may agree that in addition to their principal relation as mortgagor and mortgagee they shall also as regards the mortgaged lands stand towards each other in the relation of (/) Trust and Loan Co. v. Lawrason, 1882, 10 Can. S.C.R. 679. (g) As to this clause, see chapter 22, Action for Possession, 214. (ft) Royal Canadian Bank v. Kelly, 1869, 22 U.C.C.P. 279 (as explained in 14 C.L.J. 8), reversing 19 U.C.C.P. 196, 20 U.C.C.P. 430, 519; Trust and Loan Co. v. Lawrason, supra. (i) Brown v. Metropolitan Counties Life Insurance Society, 1859,' 1 El & El. 832, 9 R.C. 610. (;') LaVassaire v. Heron, 1880, 45 U.C.R. 7. (fc) Lehain v. Philpott, 1875, L.R. 10 Ex. 242; Fawell v. Andrew. 1917, 10 S.L.R. 162, 34 D.L.R. 12. 362. TENANCY CREATED BY ATTORNMENT. 697 I landlord and tenant, the mortgagor remaining in possession as tenant of the mortgagee (I). "Undoubtedly, a mortgagor and a mortgagee have the right to insert in their mortgage deed a clause making the mortgagor attorn as tenant to the mortgagee, and thus by contract constituting the relation of landlord and tenant between them." (m) "There can be no doubt that such clauses contained in mortgage deeds are valid and operative in themselves, and that they may, and ordinarily do create the relationship of tenant and landlord between the mortgagor and mortgagee, and with it the ordinary right of distress which the law attaches to that relationship." (n) A mortgage contained, in addition to the statutory short forms of distress clause and so-called redemise clause (0), the following provision: "And the mortgagor doth release all his claims upon the said lands and doth attorn to and become a tenant at will to the [mortgagee] subject to the said pro- viso." It was held that the relation of landlord and tenant was not validly created so as to entitle the mortgagee to claim the rights of a landlord as against an execution creditor, there being no sufficient reservation of rent (p). The attornment clause may be in the following form : The mortgagor hereby attorns to the mortgagee and becomes a tenant of the said lands during the term of this mortgage at a rent equivalent to and payable at the same days and times as the payments of interest are hereinbefore agreed to be paid, such rent when so paid to be in satisfaction of such payments of interest. Provided that the mortgagee may on default of payment or on breach of any of the covenants hereinbefore contained enter on the said lands and deter- mine the tenancy hereby created without notice, and that neither (I) Hobbs v. Ontario Loan and Debenture Co., 1890, 18 Can. S.C.R. 483, at pp. 492, 493. (m) Ex parte Jackson, In re Bowes, 1880, 14 Ch.D. 725 at p. 739, Cotton L.J. (n) lUd, 14 Ch.D. at p. 743, Thesiger, L. J. (o) Which in themselves do not create the relation of landlord and tenant See 361, supra. (p) Trust and Loan Co. v. Lawrason, 1882, 10 Can. S.C.R. 679, affirming, by an equally divided court, 6 O.A.R. 286. See also 363, infra, as to the requirements of a valid tenancy. 698 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. the existence of this clause nor anything done by virtue thereof shall render the mortgagee liable as mortgagee in possession so as to be accountable for any moneys except those actually received. Where a mortgage contained the following attornment clause: "And the said mortgagor doth hereby attorn to and become tenant of the said lands to the mortgagees at a yearly rental of $96 to be paid in the manner and upon the terms hereinbefore appointed for the payment of interest," it was held that the relation of landlord and tenant was validly created (g). It is not necessary to the creation of a valid tenancy that the mortgage should be executed by the mortgagee, notwith- standing the provisions of the Statute of Frauds (r). The admission under seal by the mortgagor of the terms of the demise amounts to an estoppel binding on him (s). The attornment to the mortgagee by deed executed by the mortgagor in possession and delivered to the mortgagee is sufficient evidence of the creation of the' tenancy between the parties (t), and it is not essential to the creation of a valid tenancy that the mortgagor should be let into possession. It is sufficient if there is a continued occupation by the mort- gagor instead of a change of possession and a letting into' possession again (u). In order to create the relation of landlord and tenant the legal reversion of the lands need not be in the mortgagee. (q) Linstead v. The Hamilton Provident and Loan Society, 1896, 11 M.R. 199. (r) 29 Car. 2, c. 3; R.S.O. 1914, c. 102, ss. 2, 3, 4. (s) Hobbs v. The Ontario Loan and Debenture Company, 1890, 18 Can. S.C.R. 483; Morton v. Woods, 1869, L.R. 4 Q.B. 293, affirming L.R. 3 Q.B. 658. 'See also Ex parte Yoisey, In re Knight, 1882, 21 Ch.D 442. (*) West v. Fritche, 1848, 3 Exch. 216; Morton v. Woods, 1868, L.R. 3 Q.B. 658, 4 Q.B. 293; Ex parte Voisey, in re Knight, 1882, 21 Ch.D. 442. (u) Morton v. Woods, supra; West v. Fritche, 1848, 3 Exch. 216. 362. TENANCY CREATED BY ATTORNMENT. 699 "Although it may appear on the face of the deed that the defen- dants, the lessors, have not the legal estate yet the tenant and those who claim through him 'are estopped, after he has attorned, from denying that the relation of landlord and tenant existed between the defendants and the mortgagor so as to pass as between them the reversion of the lessor." (v) There may be two or more attornments by the same mort- gagor to different mortgagees; and the mortgagees will be entitled to distrain for the purposes of their respective mort- gages and during the same period of time. "If by a contract, notwithstanding the fact is known that the legal estate is outstanding in a mortgagee, and that the mortgagor is not really the owner of the reversion, you can create a tenancy between the second mortgagee and the mortgagor by what may be called estoppel, or quasi estoppel (it does not matter what term we use), it appears to me that there is nothing either in law or in good sense to prevent the same arrangement being made with more than one mortgagee." (w) A tenancy, from year to year or from month to. month will be a good yearly or monthly tenancy notwithstanding that the mortgage contains a proviso that it may be determined at any time at the will of the .mortgagee (x). There may be a ten- ancy at will although the rent reserved is payable yearly (y). The creation of the relation of landlord and tenant by ex- press stipulation does not alter the equitable relation existing between them which arises out of the relation of mortgagor and mortgagee. The existence of the tenancy may, however, interfere with the mortgagee's right to take possession unless he has the right to determine the tenancy at any time (2) ; and a clause giving the mortgagee this right is valid (a). (v) Morton v. Woods, 1868, L.R. 3 Q.B. 658 at p. 667. (w) Ex parte Punnett, 1880, 16 Ch.D. 226, at p. 234. (x) In re Threlfall, 1880, 16 Ch.D. 274; Ex parte Voisey, In re Knight, supra; Kemp v. Lester, [1896] 2 Q.B. 162. (y) Doe d. Dixie v. Davies, 1851, 7 Ex. 89. (z) In re Stockton Iron Furnace Co., 1879, 10 Ch.D. 335. (a) Doe d. Garrod v. Olley, 1840, 12 A. & E. 481; Metropolitan Counties &c. Assurance Society v. Brown, 1859, 4 H. & N. 428. 700 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. It has been held that an attornment clause creating the relation of landlord and tenant does not in itself render the mortgagee liable to account as a mortgagee in possession (b), but in view of the dicta to the contrary (c) it is prudent to add to an attornment clause a proviso that the mortgagee shall not thereby be rendered liable as mortgagee in possession so as to be accountable for any moneys except those actually received -(^)- 363. Distress in case of attornment. If a tenancy is validly created by attornment the mortgagee will have the ordinary rights of a landlord, including the right of distress (e), not only as between the mortgagee and the mortgagor but in respect of third parties. To the extent permitted by statute (/) the mortgagee may distrain on the goods of a stranger found upon the demised premises and his rights will be good against execution creditors of the mort- gagor (g). In order that the mortgagee may have the right to dis- train" as against creditors of the mortgagor or upon goods of a stranger it must appear that it was the intention of the parties, acting in good faith, to create a real tenancy at the rent reserved and not merely, under colour or pretence of a lease, to give to the mortgagee an additional security, inci- (&) Stanley v. Grundy, 1883, 22 Ch.D. 478, 3 R.C. 569. (c) In re Stockton Iron Furnace Co., supra; Ex parte Punnett, supra; Ex parte Harrison, In re Betts, 1881, 18 Ch.D. 127. (a) As in the form of attornment clause suggested above. As to the liabilities of a mortgagee in possession, see chapter 28. (e) Ex parte Jackson, In re Bowes, 1880, 14 Ch.D. 725 at p. 743; Pegg v. Independent Order of Foresters, 1901, 1 O.L.R. 97. (/) See the statutes referred to below and those referred to in 364, infra. (g) Hobbs v. Ontario Loan and Debenture Co., 1890, 18 Can. S.C.R. 483, at p. 493; Kearsley v. Philips, 1883, 11 Q.B.D. 621. 363. DISTRESS IN CASE OF ATTORNMENT. 701 dental to his character of mortgagee, in case of the insolvency of the mortgagor (7i). It is material in determining the bona fides of the tenancy to consider the amount of rent reserved by the mortgage. Where the rent is out of all proportion to the annual value of the lands the inference is that it was not the intention of the parties in good faith to create a tenancy. "So far as any inference can be drawn from the practice of inserting attornment clauses, it appears to me that the benefit to be derived from the attornment clause was intended to be an equivalent for that which the mortgagee would derive from the rent if the ten- ant had been a stranger. What would that equivalent be? Would it not be a right to the payment of a fair and reasonable rent such as the ordinary tenant would be willing to give for tiie property under ordinary circumstances? That, as it seems to me, is the rent for which a properly prepared attornment clause should make pro- vision, not necessarily the exact amount which a tenant would pay for the property but such an amount as a willing tenant would probably pay as a bona fide rent. If the rent so reserved is clearly in excess of what would be a fair and reasonable rent, it appears to me that although you may call it rent it is no longer a real rent but a fictitious payment under the name of rent." (i) So, where a mortgage of real estate provided that the moneys secured thereby amounting to $20,000 should be pay- able with interest at seven per cent, per annum as follows: $500 on December 1st, 1883 ; $500 on the first days of June and December in each of the four following years ; $15,500 on June 1st, 1888 ; and contained an attornment clause reserving rent equal in amount to the amounts so payable; it was held that the rent reserved was so unreal and excessive as to show conclusively that the parties could not have intended to create (ft) Ex parte Jackson, In re Bowes, 1880, 14 Ch.D. 725; Hobbs v. Ontario Loan and Debenture Co., 1890, 18 Can. S.C.R. 483; Thomas v. Cameron, 1885, 8 O.R. 441. (i) Ex parte Jackson, In re Bowes, 1880, 14 Ch.D. 725, at pp. 733, 734; Waterous Engine Works v. Wells and Bank of Montreal, 1911, 4 S.L.R. 48; Independent Lumber Co. v. David and Hurlburt, 1911, 5 S.L.R. 1, 316. 702 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. a tenancy and that the arrangement was unreal and fictitious (j). The stipulation, however, will be supported if the rent although a large rent, is one which a tenant honestly might agree to pay and the landlord honestly might expect to re- ceive (k), A mortgagee may apply the proceeds of a distress for rent in 'payment of whatever is due to him whether for principal or interest. A contrary intention is not shown by the fact that the amount fixed for rent is equal to the sum due for interest and is payable on the same days (I). A rent that is certain is essential to the creation of a valid tenancy. The rent must be fixed and certain but it may fluc- tuate. It is sufficient if by calculation it may be rendered certain. Id cerium est quod cerium reddi potest. Thus where the rent reserved was a monthly instalment of a fixed amount together with a fine of five per cent, per month on the whole amount unpaid, the rent was held to be sufficiently ascertained (m). Where, however, a mortgage contained a special pro- vision by which the mortgagors became lessees of the mort- gaged lands until the maturity of the mortgage at a rental of the same amount as the interest, and the mortgagee distrained for arrears of interest which accrued after the maturity of the mortgage, it was held that there was no definite tenancy after the maturity of the mortgage and that, the interest thereafter being recoverable not by the terms of the contract but as (/) Hobbs v. Ontario Loan and Debenture Co., 1890, 18 Can. S.C.R. 483; Imperial Loan & Investment Company v. Clement, 1896, li M.R. 428, 445; Stikeman v. Fummerton, 1911, 21 M.R. 754. (fc) Ex parte Williams, In re Thompson, 1877, 7 Ch.D. 138; In re Stockton Iron Furnace Co., 1879, 10 Ch.D. 335. (Z) Ex parte Harrison, In re Betts, 1881, 18 Ch.D. 127, over- ruling Hampson v. Fellows, 1868, L. R. 6 Eq. 575; cf. McDonell v. Building and Loan Association, 1886, 10 O.R. 580. (m) Ex parte Voisey, In re Knight, 1882, 21 Ch.D. 442; Trust and Loan Company v. Lawrason, 1882, 10 Can. S.C.R. 679. 363. DISTRESS IN CASE OF ATTORNMENT. 703 damages, the rent became uncertain and therefore there was no right of distress (n). .Where a mortgage deed contains a stipulation that the mortgagor shall become tenant to the mortgagee upon default in any of the payments the mortgagee has no right to distrain unless he shall have given notice previously to the mortgagor that he intends to treat him as a tenant (0). It is provided in Ontario by the Landlord and Tenant Act, R.S.O. 1914, c. 155, s. 40, as follows: 40. A person having any rent due and in arrear, upon any lease for life or lives or for years, or at will, ended or determined, may distrain for such arrears, after the determination of the lease, in the same manner as he might have done if the lease had not been ended or determined, if such distress is made within six months after the determination of the lease, and during the continuance of the landlord's title or interest, and during the possession of the tenant from whom the arrears became due. This provision is derived from the English statute 8 Anne, c. 18 (c. 14 in Ruff head's edition), ss. 6 and 7. It is appli- cable to a tenancy created by an attornment clause in a mort- gage (p). It is further provided by the Landlord and Tenant Act, s. 55, as follows: 55. (1) Goods or chattels lying or being in or upon any land leased for life or lives, or term of years, at will or otherwise shall not be liable to be taken by virtue of any execution issued out of the Supreme Court or out of a County or District Court on any pretence whatsoever, unless the party at whose suit the execution is sued out before the removal of such goods or chattels from the premises by virtue of such execution pays to the landlord or his bailiff all money due for rent of the premises at the time of the taking of such goods or chattels by virtue of such execution if the arrears of rent do not amount to more than one year's rent. (n) Klinck v. The Ontario Industrial Loan and Investment Company, 1888, 16 O.R. 562. (o) Clowes v. Hughes' 1870, L.R. 5 Ex. 160. (p) Klinck v. Ontario Industrial Loan and Investment Co., supra. 704 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. (2) If such arrears exceed one year's rent the party at whose suit such execution is sued out, on paying the landlord or his bailiff one year's rent, may proceed to execute his judgment. (3) The sheriff or other officer shall levy and pay to the execu- tion creditor as well the money so paid for rent as the execution money. This provision is derived, from the English statute 8 Anne, c. 18 (c. 14 in Ruffhead's edition), s. 1. In England an attornment clause, unless registered under the Bills of Sale Acts of 1878 and 1882, is void so far as the right to distrain is concerned (g), but in Ontario such a clause does not come within the Bills of Sale and Chattel Mortgages Act (r). Pending the distress the goods taken by the mortgagee are in the custody of the law and not liable to seizure by chattel mortgagees or execution creditors so long as no fraud is on foot and no intention or contrivance exists to prejudice chattel mortgagees (s). If the mortgagee obtains a judgment for the interest or for the principal and interest, the remedy of distress is not thereby merged. A judgment is but a security for the debt until it be satisfied, and does not operate to change any other concurrent remedy which the mortgagee may have (t). The power to distrain under a tenancy from year to year or for a term of years may be exercised by the devisees of the mortgagee (u). Where the tenancy is a tenancy at will (q) Mumford v. Collier, 1890, 25 Q.B.D. 279; Green v. Marsh, [1892] 2 Q.B. 330. (r) Trust and Loan Co. v. Lawrason, 1881, 6 O.A.R. 286, at p. 290, S.C. 10 Can. S.C.R. 679; cf. McDermott v. Fraser, 1915, 25 M.R. 298, 23 D.L.R. 430. (s) Anderson v. Henry, 1898, 29 O.R. 719. (*) Drake v. Mitchell, 1803, 3 East 251; Westmoreland &c. Slate Co. v. Fielden, [1891] 3 Ch. 15; Wegg Prosser v. Evans, [1894] 2 Q.B. 101, [1895] 1 Q.B. 108. () West v. Fritche, 1848, 3 Exch. 216 363. DISTRESS IN CASE OF ATTORNMENT. 705 it comes to an end with the death of the mortgagor, and the mortgagee cannot distrain upon the heirs (i>). It is provided in Ontario by the Landlord and Tenant Act, R.S.O. 1914, c. 155, s. 59, as follows: 59. The executors or administrators of a landlord may distrain for the arrears of rent due to such landlord in his lifetime, and may sue for the same in like manner as such landlord might have done if living, and the powers and provisions contained in this Act relating to distresses for rent shall be applicable to the distresses so made. 364. On what goods the mortgagee may distrain. If a mortgagee has a right of distress by virtue of a ten- ancy created by attornment (w), there are certain limitations imposed by statute upon his right. It is provided in Ontario by the Landlord and Tenant Act, R.S.O. 1914, c. 155, s. 31, as follows: 31. (1) A landlord shall not distrain for rent on the goods and chattels of any person except the tenant or person who is liable for the rent, although the same are found on the premises; but this restriction shall not apply in favour of a person claiming title under an execution " against the tenant, or in favour of a person whose title is derived by purchase, gift, transfer, or assign- ment from the tenant, whether absolute or in trust, or by way of mortgage or otherwise, nor to the interest of the tenant in any goods or chattels on the premises in the possession of the tenant under a contract for purchase, or by which he may or is to become the owner thereof upon performance of any condition, nor where goods or chattels have been exchanged between tenants or persons by the one borrowing or hiring -from the other for the purpose of defeating the claim of or the right of distress by the landlord, nor shall the restriction apply where the property is claimed by the wife, husband, daughter, son, daughter-in-law, or son-in-law of the tenant, or by any other relative of his, if such other relative lives on the premises as a member of the tenant's family, or by any person whose title is derived by purchase, gift, transfer or assignment from any relative to whom such restriction does not apply. (2) Nothing in this section shall exempt from distress goods or chattels in a store or shop managed or controlled by an agent or (v) Scobie v. Collins, [1895] 1 Q.B. 375. (w) 362, supra. 706 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. clerk for the owner of such goods or chattels where such clerk or agent is also the tenant and in default, and the rent is due in respect of the store or shop or premises rented therewith and thereto be- longing, if such goods or chattels would have been liable to seizure but for this Act. (3) Subject to the provisions of section 34 (a;), "tenant" in this section shall include a sub-tenant and the assigns of the tenant and any person in actual occupation of the premises under or with the assent of the tenant during the currency of the lease, or while the rent is due or in arrear, whether or not he has attorned to or become the tenant of the landlord. A tenant who has been let into possession by a lessor (y) or who has attorned to the lessor under seal (z) is estopped from denying his lessor's title, but third persons, not claim- ing possession of the land under the tenant are not so estop- ped. Therefore a person who lets premises to which he has no title to a tenant, cannot distrain for arrears of rent due from the tenant on the goods of a third person which happen to have been brought on the premises by the tenant's license (a). If, however, the lessor has the title to the land he would, apart from the statute above mentioned, have the right to distrain on the goods of a third person (&), and he still has the right to do so in the exceptional cases mentioned in the statute. If a mortgagee's right to distrain is founded only upon an express power to distrain under the so-called statutory distress clause (c), the right is merely a personal license to distrain upon the goods, of the mortgagor. There being no (x) Which requires that the landlord who desires to seize exempted goods shall serve upon the tenant a notice in a prescribed form. (y) Cooke v. Loxley, 1792, 5 T.R. 4, 15 R.C. 297; Delaney v. Fox, 1857, 2 C.B.N.S. 768, 15 R.C. 299. (z) Ex parte Voisey, In re Knight, 1882, 21 Ch.D. 442, at p. 456. (a) Tadman v. Henman, [1893] 2 Q.B. 168. (6) Lyons v. Elliott, 1876, 1 Q.B.D. 210, at 213; Clarke v. Millwall Dock Co., 1886, 17 Q.B.D. 494, 9 R.C. 655. (c) I.e. under the distress clause contained in schedule B to the Short Forms of Mortgages Act. See 361, supra. 364. WHAT GOODS MAY BE SEIZED. 707 tenancy, the mortgagee has not the ordinary right of a land- lord to distrain upon the goods of a stranger found upon the premses, even as limited by s. 31 of the Landlord and Tenant Act (d). In 1886 was enacted the provision which is now contained in the Mortgages Act, R.S.O. 1914, c. 112, s. 13, as follows: 13. The right of a mortgagee to distrain for interest in arrear upon, a mortgage made after the 25th day of March, 1886, shall be limited to the goods and chattels of the mortgagor, and to such of them as are not exempt from seizure under execution. As regards the right to distrain merely under an express power to distrain this section simply declares the law, except that the right to distrain is further limited to such goods and chattels of the mortgagor as are not exempt from seizure under execution (e). There has, however, been considerable difference of opinion on the question whether this section applies also to the case of a mortgagee who has a right to distrain by virtue of a tenancy created by attornment or whether the mortgagee in such case has the ordinary right of a landlord to distrain as limited only by s. 31 of the Landlord and Tenant Act. This question is .complicated by the fact that in 1887 the Mortgages Act was further amended by the addition of a section providing that the mortgagee's right to distrain "for arrears of interest or for rent" should be restricted to one year's arrears of such "interest or rent" (/). The distinction drawn in the* statute (d) Trust and Loan Co. v. Lawrason, 1882, 6 O.A.R. 286, 10 Can. S.C.R. 679; Edmonds v. Hamilton Provident and Loan Society, 1891, 18 O.A.R. 347, at p. 358. (e) As to the goods and chattels of a debtor which in Ontario are exempt from seizure under execution, see the Execution Act, R.S.O. 1914, c. 80. Goods and chattels which are exempt from seizure under execution are not liable to seizure by distress by a landlord for rent with certain execeptions specified in the Landlord and Tenant Act, R.S.O. 1914, c. 155, ss. 30, 33 and 34. (/) Now R.S.O. 1913, c. 112, s. 14. See the text of the section in 365. 708 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. of 1887 between interest and rent, if applied to the statute of 1886, would seem to lead to the conclusion that the statute of 1886 should be limited to the case of distress for interest. It has been held, however, in Ontario that the statute of 1886 applies also to the case of distress under a tenancy created by attornment (g). Osier, J.A. said: "This section has also, I think, the effect of limiting in the same way any right of distress which the mortgagees might otherwise have had under another clause in the mortgage ^by which the mortgagors 'attorn to and become tenants at will to the mortgagees, at a rent equal in amount to the interest reserved, payable at the time mentioned in the proviso.' This section is a general one taken from section 3 of 49 Viet. ch. 29, An Act Respecting Landlords and Tenants and Distresses. Had it been intended to deal only with the mort- gagee's right to distrain under a mere license, the enactment would have been unnecessary. I think the intention was to reach every case in which the mortgagee whether in the character of landlord or licensee, still under and for the purposes of the mortgage, had the right to distrain. The section is wide enough to cover every case and I cannot accede to the argument that the next section, which is taken from a subsequent act, controls its generality" (ft). In Manitoba it has been held that a similar statute has reference not to the right of a mortgagee to distrain for rent under a tenancy validly created but only to the right to dis- train for interest under a mere license to distrain, such as the statutory short form of distress clause (t). Where a mortgage deed contains a provision that the mort- gagee may distrain for arrears of interest and also an attorn- ment clause by which the mortgagor becomes a tenant of the mortgagee, and the mortgagee distrains for arrears of interest, (g) Edmonds v. Hamilton Provident and Loan Society, 1891, 18 O.A.R. 347. The contrary view, expressed in Burton, J. A.'s judgment, seems more reasonable. (ft) 18 O.A.R. 347, at p. 358. See also Vousden v. Hopper, 1911, 4 S.L.R. 1, at pp 6, 7. (i) Linstead v. Hamilton Provident and Loan Society, 1896, 11 M.R. 199; McDermott v. Fraser, 1915, 25 M.R. 298, 23 D.L.R. 430. 364. WHAT GOODS MAY BE SEIZED. 709 but not for rent as such, on the erops of a lessee of the mort- gagor, the distress is wholly illegal for the defendant can take only the goods of the mortgagor for arrears of interest 0'). 365. What arrears may be recovered by distress. It is provided in Ontario by the^ Mortgages Act, R.S.O. 1914, c. 112, s. 14, as follows": 14. (1) As against creditors of a mortgagor, or person in possession of mortgaged premises under a mortgagor, the right, if any, to distrain upon the mortgaged premises for arrears of interest or for rent, in the nature of or in lieu of interest under the pro- visions of any mortgage executed after the 23rd day of April, 1887, shall be restricted to one year's arrears of such interest or rent. (2) This restriction shall not apply unless some one of such creditors shall be an execution creditor, or unless there shall be an assignee for the general benefit of such creditors appointed before lawful sale of the goods and chattels distrained, nor unless the officer executing such writ of 'execution or such assignee shall, by notice in writing to be given to the person distraining or his at- torney, bailiff, or agent before such lawful sale, claim the benefit of such restriction. (3) When such notice is given the distrainor shall relinquish to the officer or assignee the goods and chattels so distrained, upon receiving one year's arrears of such interest or rent and his rea- sonable costs of distress, or if such arrears and costs shall not be paid or tendered he shall sell only so much of the goods and chattels distrained as shall be necessary to satisfy one year's arrears of such interest or rent and the reasonable costs of distress and sale, and shall thereupon relinquish any residue of them, and pay any residue of moneys, proceeds thereof so distrained, to such officer or assignee. (4) An officer executing an execution, or an assignee who pays any money to relieve goods and chattels from distress under this section, shall be entitled to reimburse himself therefor out of the proceeds of the sale thereof. (5) The goods and chattels distrained shall not be sold except after such public notice as is now required to be given by a land- lord who sells goods and chattels distrained for rent. (;') Miller v. Imperial Loan and Investment Company, 1896, 11 M.R. 247. See also Edmonds v. Hamilton Provident and Loan . Society, 1891, 18 O.A.R. 347. 710 CHAPTER XXXIII. ATTORNMENT AND DISTRESS. Apart from the foregoing section a mortgagee is not en- titled to recover out of the land by distress or action more than six years' arrears of rent or interest, though in an action on the covenant he may recover ten years' arrears or, in the case of mortgages made before the 1st day of July, 1894, twenty years' arrears (k). 366. Attornment under tine Land Titles Acts. It has been held in Saskatchewan (I), in accord with an earlier decision in Alberta (m), that an attornment clause in a mortgage under the Land Titles Act, though it may create contractual rights between the parties and a tenancy by estop- pel as against the mortgagor and persons in privity with him, does not create the relation of landlord and tenant as against other persons (as, for instance, execution creditors), and does not confer on the mortgagee the protection of the statute 8 Anne, c. 14, s. 1 (n). The alleged inapplicability to a mortgage under the Land Titles Acts of the principles of the English and Ontario cases as to the creation by attornment of a real tenancy between the mortgagor and mortgagee is based chiefly upon the fact that a mortgage under the Land Titles Acts does not convey any estate to the mortgagee but operates by way of security merely. As the estate remains in the mortgagor, it is said that (fc) See chapter 26, Limitation of Actions, 266 and 261. (0 First National Bank v. Cudmore, 1917, 10 S.L.R. 201, 34 D.L.R. 201. (m) Hyde v. Chapin Co., 1916, 26 D.L.R. 381, 9 W.W.R. 1142. (n) This section provides in effect that goods lying or being in or upon premises which are leased shall not be liable to seizure under execution unless the execution creditor first satisfies the landlord's claim for rent to the extent of one year's arrears. See R.S.O. 1914, c. 155, s. 55, quoted in 363, supra. 366. THE LAND TITLES ACTS. 711 there is no foundation for a redemise and no reversion in the mortgagee to which the rent is incident (0). It is, however, now provided in Saskatchewan by the Land Titles Act, 1917, s. 116, as follows : 116. A mortgagor may agree in writing to become the tenant of the mortgagee, and in case of such agreement heretofore or here- after made the relationship of landlord and tenant shall be held to have been validly constituted between the parties for all purposes and as against all persons whomsoever: Provided that nothing herein contained shall affect the rights of any parties in any action or other proceeding now pending. (c> See First National Bank v. Cudmore, supra; Hyde v. Chapin, supra. Scott, Torrens System Mortgages, at pp. 167 ff., sug- gests various reasons why these decisions are not altogether satis- factory. CHAPTER XXXIV. FIRE INSURANCE. 371. Insurable interest, p. 712. 372. Right or obligation to insure, p. 714. 373. Insurance in the name of the mortgagor, p. 716. 374. Mortgage clause in insurance policy, p. 721. 375. Insurance in the name of the mortgagee, p. 724. 376. Application of insurance money, p. 726. 371. Insurable interest. The mortgagor has by virtue of his equity of redemption an insurable interest in the mortgaged property, and his right to insure is co-extensive with the value of the property (a), but if he makes an absolute transfer of his equity of redemp- tion he no longer has an insurable interest, and any insurance then existing in his favour ceases to be effectual unless it be assigned with the consent of the insurers to the transferee of the equity of redemption. In the absence of a transfer of the equity of redemption, the mortgagor's insurable interest does not cease until the mortgage debt has been paid, even though the mortgage has been foreclosed, for the mortgagor may nevertheless continue to be liable for the mortgage debt (&). By a condition in a policy of insurance against fire the policy was to become void ' ' if the assured is not the sole and unconditional owner of the property ... or if the interest of the assured in the property whether as owner, trustee . . . mortgagee, lessee or otherwise is not truly stated." It was held that a mortgagor was sole and uncondi- (a) Glover v. Black, 1763, 1 Wm. Bl. 396; 3 Burr. 1394. (b) Parsons v. Queen Insurance Co., 1878, 29 U.C.C.P. 188, at p. 211 371. INSURABLE INTEREST. 713 tional owner within the terms of the condition. By another condition the policy was to be avoided if the assured should have or obtain other insurance, whether valid' or not, on the property. The assured applied for other insurance, but be- fore being notified of the acceptance of his application the premises were destroyed by fire. It was held that there was no 'breach of the condition (c). A mortgagor who had made a mortgage, pursuant to the Short Forms of Mortgages Act, containing a covenant to insure the mortgaged premises against fire, effected an insurance thereon with the defendant company, the loss, by the policy, being payable to the plaintiff, the mortgagee, as his interest might appear under the mortgage. Subsequently the mort- gagor conveyed his equity of redemption to the mortgagee without the consent of the company having been obtained therefor. The premises having been afterwards destroyed by fire, it was held that the plaintiff was not entitled to the insurance moneys, for ( 1 ) the fact of the conveyance made by the mortgagor to the plaintiff, whereby the former ceased to have any interest at the time of the fire, was a good answer to the claim; and (2) such conveyance constituted a breach of a statutory condition which provides against the insured premises being assigned without the company's consent (d). In order to come within a condition providing against the assignment of the insured premises, an assignment must be an absolute transfer of the subject matter. An assignment by way of mortgage (e) or an agreement to sell, the vendor (c) Western Assurance Co. v. Temple, 1901, 31 Can. S.C.R. 373, following Commercial Union Assurance Co. v. Temple, 1898, 29 Can. S.C.R. 206. (d) Pinhey v. Mercantile Fire Insurance Co., 1901, 2 O.L.R. 296. (e) Sands v. Standard Insurance Co., 1879, 26 Gr. 113, 27 Gr. 167; Sovereign Fire Insurance Co. v. Peters, 1885, 12 Can. S.C.R. 33. 714 CHAPTER XXXIV. FIRE INSURANCE. retaining the legal estate (/), does not constitute a breach of the condition. A mortgagee, unpaid vendor or other person having a limited interest in property, may effect insurance either (1) on his own interest merely, or (2) on his own interest as well as the interests of all other persons in the property. For instance, a mortgagee may effect insurance either (1) on his own interest as mortgagee or (2) on the property as a whole, including the equity of redemption (g). It has been held in New Brunswick that the interest of the mortgagee as such ends on foreclosure absolute, and that if a loss occurs thereafter the mortgagee cannot recover on a policy issued to him as mortgagee (7i). 372. Right or obligation to insure. It is usual in Ontario to insert in a mortgage the short form of covenant provided by the Short Forms of Mortgages Act, as follows : And that the said mortgagor will insure the buildings on the said lands to the amount of not less than of lawful money of 'Canada. In the case of a mortgage expressed to be made in pur- suance of the statute, the foregoing covenant has the same effect as if it were in the following terms (Wi) : And also that the said mortgagor or his heirs, executors, ad- ministrators or assigns shall and will forthwith insure unless already (/) Keefer v. Phoenix Insurance Co., 1901, 31 Can. S.C.R. 144; Trotter and Douglas v. Calgary Fire Insurance Co., 1910, 3 A.L.R. 12. (g) Castellain v. Preston, 1883, 11 Q.B.D. 380, at p. 398; Keefer v. Phoenix Insurance Co., 1901, 31 Can. S.C.R. 144, at pp. 148, 149. As to insurance of limited interests, see an article by William Har- vey in 10 L.Q.R. 48 (Jan., 1894). As to insurance in the name of the mortgagee, see 375, infra. (ft) Gaskin v. Phoenix Insurance Co., 1866, 11 N.B.R. (6 Allen) 249. (hh) R. S. O. 1914. c. 117 j s. 3. See chapter 35, Short Forms of Mortgages Act, 381. 372. RIGHT OR OBLIGATION TO INSURE. 715 insured, and during the continuance of this security keep insured against loss or damage by fire, in such proportions upon each build- ing as may be required by the said mortgagee, his heirs, executors, administrators or assigns, the messuages and buildings erected on the said lands, tenements, hereditaments and premises hereby con- veyed or mentioned, or intended so to be, in the sum of of lawful money of Canada, at the least, in some insurance office to be approved of by the said mortgagee, his heirs, executors, adminis- trators or assigns, and pay all premiums and sums of money neces- sary for such purpose, as the same snail become due, and will on demand assign, transfer and deliver over unto the said mortgagee, his heirs, executors, administrators or assigns, the policy or policies of insurance, receipt or receipts thereto appertaining; and if the said mortgagee, his heirs, executors, administrators or assigns, shall pay any premiums or sums of money for insurance of the said premises or any part thereof, the amount of such payment shall be added to the debt hereby secured, and shall bear interest at the same rate from the time of such payments and shall be payable at the time appointed for the then next ensuing payment of interest on the said debt Under the Mortgages Act, R.S.O. 1914, c 112, in the case of a mortgage which contains no power to insure and no declaration excluding the application of Part II. of the statute, there is a power to insure as therein provided (k). In England it is provided by the Conveyancing Act, 1881, ss. 19 and 23, as follows : 19. (1) A mortgagee, where the mortgage is made by deed, shall, by virtue of this Act, have the following powers to the like extent as if they had been in terms conferred by the mortgage deed, but not further (namely) : ) (ii) A power, at any time after the date of the mortgage deed, to insure and keep insured against loss or damage by fire any building, or any effects or property of an insurable nature, whether affixed to the freehold or not, being or forming part of the mortgaged property, and the premiums paid for any such insurance shall be (t) R.S.O. 1914, c. 117, schedule B, clause 12. (;') R.S.O. 1914, c. 117, s. 3. See chapter 35, Short Forma of Mortgages A >.t, 381. (fc) R.S.O. 1914, c. 112, ss. 19, 26. See chapter 31, Sale under Power of Sale, 332, where the provisions of these statutes are quoted. 716 CHAPTER XXXIV. FIRE INSURANCE. a charge on the mortgaged property in addition to the mortgage money, and with the same priority, and with interest at the same -ate, as the mortgage money. 23. (1) The amount of an insurance effected by a mortgagee against loss or damage by fire under the power in that behalf con- ferred by this Act, shall not exceed the amount specified in the mortgage deed, or, if no amount is therein specified, then shall not exceed two third parts of the amount that would be required, in case of total destruction, to restore the property insured. (2) An insurance shall not, under the power conferred by this Act, be effected by a mortgagee in any of the following cases (namely) : (i) Where there is a declaration in the mortgage deed that no insurance is required; (ii) Where an insurance is kept up by or on behalf of the mortgagor in accordance with the mortgage deed; (iii) Where the mortgage deed contains no stipulation res- pecting insurance, and an insurance is kept up by or on behalf of the mortgagor, to the amount in which the mortgagee is by this Act authorized to insure. ^3) [This sub-section relates to the application of 'the insurance money (?)] If a mortgage company through its manager undertakes with the mortgagor to keep alive an insurance on the mort- gaged property, and takes steps towards carrying out such undertaking, but fails to carry it out, it is guilty of such negligence as to render it liable in damages to the mortgagor, if he is ignorant of such failure, for the amount of such insurance in case the property is burned after the policy lapses (m). 373. Insurance in the name of the mortgagor. Usually, when mortgaged property is insured, the insur- ance is effected in the name of the mortgagor, and a clause is inserted in the policy that the loss, if any, shall be payable (0 Sub-s. 3 is similar in terms to s. 6 of the Mortgages Act, discussed in 376, infra. (m) Campbell v. Canadian Co-operative Investment Co., 1906, 16 M.R. 464, following Skelton v. London and North Western Ry. Co., 1867, L.R. 2 C.P. 631, at p. 636. 373. INSURANCE IN NAME OF MORTGAGOR. 717 to the mortgagee as his interest may appear. Under such a clause, it would seem that the mortgagee could give a good discharge for money paid to him only to the extent of his claim as mortgagee, and that as to any surplus the receipt of the mortgagor would be necessary, .whereas if the words "as his interest may appear" are omitted, the mortgagee could give a good discharge as to the whole sum paid (n). In any case the mortgagee has an equitable lien upon the policy and its proceeds, (o) Notwithstanding the insertion of the clause mentioned, the mortgagor is the person assured and may sue in his own name upon the policy (p). Furthermore, apart from a provision in the policy to the contrary ( covenant, promise and agree to and with the said mortgagee, his heirs, executors, ad- ministrators and assigns, in manner follow- ing, that is to say: (d) See now s. 15 of the Conveyancing and Law of Property Act, R.S.O. 1914, c. 109, quoted in chapter 1, Introductory, 5. 734 CHAPTER XXXV. SHORT FORMS OF MORTGAGES. COLUMN ONE COLUMN TWO 4. That the mort- [The corresponding extended form is set gagor will pay the out in chapter 23, Action on the Covenant, mortgage money and 22 2]. interest, and observe the above proviso. 5. That the mort- 5 - An< * also, that the said mortgagor, at gagor has a good title tne time of the sealing and delivery hereof, in fee simple to the is and stands solely, rightfully and lawfully said lands. seized of a good, sure, perfect, absolute and indefeasible estate of inheritance, in fee sim- ple, of and in the lands, tenements, heredita- ments and all and singular other the prem- ises hereinbefore described, with their and every of their appurtenances and of and in every part and parcel thereof without any manner of trusts, reservations, limitations, provisoes or conditions, except those con- tained in the original grant thereof from the Crown or any other matter or thing to alter, charge, change, encumber or defeat the same. 6. And that he has 6. And also, that the said mortgagor now the right to convey hath in himself good right, full power and the said lands to the lawful and absolute authority to convey the said mortgagee. said lands, tenements, hereditaments, and all and singular other the premises hereby con- veyed or hereinbefore mentioned or intended so to be, with their and every of their ap- purtenances unto the said mortgagee, his heirs, executors, administrators and assigns, in manner aforesaid, and according to the true intent and meaning of these presents. 7. And that on de- [The corresponding extended form is set fault the mortgagee out in chapter 22, Action for Possession, shall have quiet pos-2!4.]. session of the said lands. 8. Free from all [The corresponding extended form is set encumbrances. out in chapter 22, Action for Possession, 214.]. 9. And that the 9. And also, that from and after default said mortgagor will shall happen to be made of or in the payment execute such further of the said sum of money in the said pro- 383. SCHEDULE B. 735 COLUMN ONE. COLUMN TWO assurances of the said v i s mentioned, or the interest thereof, or any lands as may be re- P ar * of such money or interest or of or in quisite. the doing, observing, performing, fulfilling or keeping of some one or more of the pro- visions, agreements or stipulations in the said above proviso particularly set forth, contrary to the true intent and meaning of these presents and of the said proviso, then and in every such case the said mortgagor, his heirs, executors, administrators and as- signs and all and every other person or per- sons whosoever having, or lawfully claiming, or who shall or may have or lawfully claim any estate, right, title, interest or trust of, in, to or out of the lands, tenements, heredita- ments and premises hereby conveyed or mentioned or intended so to be, with the ap- purtenances or any part thereof, by, from, under or in trust for him the said mortgagor, his heirs, executors, administrators or as- signs shall and will from time to time, and at all times thereafter, at the proper costs and charges of the said mortgagee, his heirs, executors, administrators, and assigns, make, do, suffer and execute, or cause or procure to be made, done, suffered and executed, all and every such further and other reasonable act or acts, deed or deeds, devices, convey- ances, and assurances in the law for the fur- ther, better and more perfectly and absolute- ly conveying and assuring the said lands, tenements, hereditaments and premises, with the appurtenances, unto the said mortgagee, his heirs, executors, administrators and assigns as by the said mortgagee, his heirs, executors, administrators or as- signs, or his or their counsel learned in the law shall or may be lawfully and reasonably devised, advised, or required, but so as no person who shall be required to make or exe- cute such assurances shall be compelled, for the making or executing thereof, to go or travel from his usual place of abode. 736 CHAPTER XXXV. SHORT FORMS OF MORTGAGES. COLUMN ONE COLUMN TWO 10. And that the !0- And also > that the said mortgagor, his said mortgagor will heirs, executors, administrators, and assigns produce the title shall an d will, unless prevented by fire or deeds enumerated inevitable accident, .from time to time, and hereunder and allow at a U times hereafter, at the request and copies to be made at proper costs and charges in the law of the the expense of the sa ^ mortgagee, his heirs, executors, adminis- mortgagee. trators, or assigns at any trial or hearing in any action or otherwise as occasion shall re- quire, produce all, every or any deed, instru- ment or writing hereunder written for the manifestation, defence and support of the es- tate, title and possession of the said mort- gagee, his heirs, executors, administrators and assigns, of, in, to or out of the said lands, tenements, hereditaments and premises here- by conveyed or mentioned or intended so to be, and at the like request, costs and charges shall and will make and deliver, or cause or procure to be made and delivered, unto the said mortgagee, his heirs, executors, ad- ministrators and assigns, true and attested or other copies or abstracts of the same deeds, instruments and writings respectively, or any of them, and shall and will permit and suffer such copies and abstracts to be examined and compared with the said orig- inal deeds by the said mortgagee, his heirs, executors, administrators and assigns. IT. And that the 11- And also that the said mortgagor hath said mortgagor has not at any time heretofore made, done, corn- done no act to encum- mitted, executed, or wilfully or knowingly her the said lands. suffered any act, deed, matter or thing whatsoever, whereby or. by means whereof the said lands, tenements, hereditaments, and premises hereby conveyed or mentioned or intended so to be, or any part or parcel thereof, are, is or shall or may be in any w.ise impeached, charged, affected or encum- bered in title, estate or otherwise howsoever. 12. And that the [The corresponding extended form is set said mortgagor will out in chapter 34, Fire Insurance, 372]. insure the buildings on the said lands to 383. SCHEDULE B. 737 COLUMN ONE COLUMN TWO the amount of not less than of lawful money of Canada. 13. And the said 1S - And the said mortgagor hath released, mortgagor doth re- remised and for ever quitted claim, and by lease to the said mort- these presents doth release, remise, and for gagee all his claims ever Quit claim unto the said mortgagee, his upon the said lands heirs, executors, administrators and assigns, subject to the said a11 and a11 manner of right, title, interest, proviso. claim and demand whatsoever, of, unto and out of the said lands, tenements, heredita- ments, hereditaments and premises, subject .mentioned, or intended so to be, and every part and parcel thereof, so as that neither the said mortgagor, his heirs, executors, ad- ministrators or assigns, shall or may at any time hereafter have, claim, pretend to, chal- lenge or demand the said lands, tenements, hereditaments and premises, or any part thereof, in any manner howsoever, subject al- ways to the said above proviso; but the said mortgagee, his heirs, executors, administra- tors or assigns, in respect of the said lands, ments and premises hereby conveyed or as aforesaid, shall henceforth forever here- after be exonerated and discharged of and from all claims and demands whatsoever which the said mortgagor, his heirs or as- signs might or could have upon the said mortgagee, his heirs, executors, administra- tors or assigns, and the said lands, tone- tenements, hereditaments, and premises, or upon the said lands, tenements, heredita- ments and premises. 14. Provided that [The corresponding extended form is set the said mortgagee on out in chapter 31, Sale under Power of Sale, default of payment 334]. for may on notice enter on and lease or sell the said lands. 738 CHAPTER XXXV. SHORT FORMS OF MORTGAGES. COLUMN ONE. COLUMN TWO. 15. Provided that [The corresponding extended form is set the mortgagee may out in chapter 33, Attornment and Distress, distrain for arrears 361]. of interest. 16. Provided that C Tne corresponding extended form is set in default of the pay- out in chapter 23, Action on the Covenant, ment of the interest 22 6]. hereby secured the principal hereby se- cured shall become payable. 17. Provided that f 1 " 116 corresponding extended form is set until default of pay- out in cna P ter 22 > Action for Possession, ment the mortgager 214 1- shall have quiet pos- session of the said lands. 384. Implied covenants. It is provided by the Mortgages Act, R.S.O. 1914, c. 112, s. 7, as follows: 7. There shall, in the several cases in this section mentioned, be deemed to be 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 conveys, as far as regards the subject-matter or share thereof expressed to be conveyed by him with the person, if one, to whom the conveyance is made, or with the persons jointly, if more than one, to whom the conveyance is made as joint tenants, or with each of the persons, if more than one, to whom the convey- ance is made as tenants in common, that is to say: (a) In a conveyance by way of mortgage the following covenants by the person who conveys, and is expressed to convey as beneficial owner, namely, covenants, (i) For payment of the mortgage money and interest, and observance in other respects of the proviso in the mortgage; (ii) For good title; (iii) For right to convey; (iv) That, on default, the mortgagee shall have quiet pos- session of the land; free from all encumbrances; (v) That the mortgagor will execute such further assurances of the said lands as may be requisite; and 384. IMPLIED COVENANTS. 739 (vi) That the mortgagor has done no act to encumber the land mortgaged; according to the forms of covenants for such purposes set forth in Schedule B to The Short Forms of Mortgages Act, subject to the pro- visions of that Act. (&) In a conveyance by way of mortgage of leasehold property, the following further covenants by the person who conveys and is expressed to convey, as beneficial owner, namely, (i) That the lease or grant creating the term or estate for which the land is held is, at the time of conveyance, a good, valid and effectual lease or grant of the land con- veyed, and is in full force, unforfeited, and unsurrendered, and in nowise become void, or voidable, and that all the rents reserved by, and all the covenants, conditions and agreements contained in the lease or grant and on the part of the lessee or grantee and the persons deriving title under him to be paid, observed and performed, have been paid, observed and performed up to the time of convey- ance; and also (ii) That the person so conveying, or the persons deriving title under him, will at all times, as long as any money remains on the security of the conveyance, pay, observe and perform, or cause to be paid, observed and performed, all the rents reserved by, and all the covenants, conditions and agreements contained in the lease or grant, and on the part of the lessee or grantee and the persons deriving title under him, to be paid, observed and performed, and will keep the person to whom the conveyance is made and those deriving title under him indemnified against all actions, proceedings, costs, charges, damages, claims and demands, if any, to be incurred or sustained by him or them by reason of the non-payment of such rent, or the non-observance or non-performance of such covenants, con- ditions and agreements, or any of them. 8. In a mortgage, where more persons than one are expressed to convey as mortgagors, or to join as covenantors, the implied cov- enants on their part shall be deemed to be joint and several cov- enants 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. 740 CHAPTER XXXV. SHORT FORMS OF MORTGAGES. It is also provided by the Conveyancing and Law of Pro- perty Act, R.S.O. 1914, c. 109, s. 22, sub-s. 1, clause (c), that in a conveyance by a person who conveys, and is expressed to convey, as mortgagee, there shall be implied a covenant on his part against encumbrances created by him. It is provided by the Land Titles Act, R.S.O. 1914, c. 126, s. 31, sub-s. 1, and s. 32, as follows: 81. (1) Where a registered charge is created there shall be implied on the part of the registered owner, at the time of the creation of the charge, his heirs, executors and administrators, un- less there is an entry on the register negativing the implication, covenants with the registered owner for the time being of the charge: (a) To pay the principal sum charged and interest, if any, thereon at the appointed time and rate; and all taxes, rates, charges, rents, statute labour or other impositions theretofore or thereafter imposed or charged on the land, and that in case of default all payments made by the owner of the charge may be added to the principal sum and bear interest; (b) If the principal sum or any part thereof is unpaid at the appointed time to pay interest half yearly at the appointed rate on so much of the principal sum as for the time being remains unpaid. 32. Where a registered charge is created on any leasehold land there shall be implied on the part of the registered owner of such leasehold land, at the time of the creation of the charge, his heirs, executors, and administrators, unless there is an entry on the register negativing the implication, covenants with the registered owner for the time being of the charge: (a) That the registered owner of such leasehold land, at the time of the creation of the charge, his executors, adminis- trators or assigns will pay, perform and observe the rent, covenants and conditions by and in the registered lease reserved and contained, and on the part of the lessee to be paid, performed and observed; and (b) Will keep the owner of the charge, his executors, admin- istrators and assigns indemnified against all actions, suits, expenses and claims on account of the non-payment of such rent, or any part thereof, or the breach of such covenants or conditions or any of them. 384. IMPLIED COVENANTS. 741 In Saskatchewan it is provided by the Land Titles Act, 1917, s. 104, as f ollo-ws : 104. In every mortgage there shall be implied, against the mortgagor remaining in possession, a covenant that he will repair and keep in repair all buildings or other improvements erected and made upon the land, and that the mortgagee may at all convenient times until the mortgage is redeemed enter into or upon the land, with or without surveyors, to view the state of repair of the build- ings or improvements. Similar provisions are in force in Alberta and the North- west Territories (e). (e) Alta. statutes, 1906, c. 24, s. 69; R.S.C. 1906, c. 110, s. 108. CHAPTER XXXVI. THE MORTGAGORS' AND PURCHASERS' RELIEF ACT. 391. Proceedings not to be taken without leave, p. 742. 392. Excepted cases, p. 744. 393. Powers of the judge, p. 746. 394. Retroactive operation, p. 748. 395. Power to make rules, p. 749. 396. Lands situate or mortgage made without Ontario, p. 749. 397. Duration of the statute, p. 749. 391. Proceedings not to be taken without leave. 5 George V, Chapter 22. An Act to give further power to Courts with respect to the Recovery of Money secured by Mortgage and other similar matters. Assented to 8th April, 1915. HIS MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of Ontario, enacts as follows: 1. This Act may be cited as The Mortgagors' and Purchasers' Relief Act, 1915. 2. (1) No person shall, (a) take or continue proceedings by way of foreclosure or sale or otherwise, or proceed to execution on or otherwise to-, the enforcement of, any judgment or order of any court, whether entered or made before or after the passing of this Act, for the recovery of principal money secured by any mortgage of land or any interest therein (a) made or executed prior to the fourth day of August, 1914; (a) It has been said that the statute should be construed liber- ally, and the case of a derivative mortgage falls within its provisions. In the circumstances of a particular case proceedings upon a deriva- tive mortgage were stayed on the application of the original mort- gagees (the makers of the derivative mortgage). Re Shepard and Rosevear and Moyes Chemical Co., 1918, 42 O.L.R. 184. On the other hand, see Fisher v. Ross, 1914, 24 M.R. 773, at p. 778, 19 D.L.R. 69, at p. 72, and Chapman v. Purtell, 1915, 25 M.R. 76, 22 D.L.R. 860,. 391. MORTGAGEE MUST OBTAIN LEAVE. 743 (b) take or continue any proceedings under any power of sale, or levy or distress, or take, resume or enter into possession of any land or interest therein for the recovery of prin- cipal money under any power contained in a mortgage of land, or of any interest therein, executed prior to the fourth day of August, 1914; (c) declare or take advantage of the forfeiture of any land or of any right or interest acquired therein or of any sum of money paid for or on account of the purchase money of such land or of any interest therein, or by way of de- posit or otherwise, under the terms of a contract for sale or purchase made or entered into prior to the fourth day of August, 1914; (d) take or continue any proceedings for the recovery of any part of the principal money secured by mortgage or pay- able as part of the purchase money of any land or any in- terest therein payable by the purchaser or mortgagor upon any covenant or agreement as principal or guarantor or otherwise, whether express or implied, made or entered into prior to the fourth day of August, 1914, or enforce by execution or other process any judgment obtained" in respect of any such covenant or agreement; (e) take or continue proceedings for the recission of, or for the recovery of damages for the breach of any contract involving the expenditure of money in providing improve- ments or services upon lands, or for the common benefit of the owners of lands laid out in .building lots, upon the ground that default has been made in making such ex- penditure or in providing such improvements or services, when the date at which such expenditure should have been made or such improvements or services made or provided is later than the 4th day of August, 1914, except by leave of a judge granted upon application as hereinafter provided. (2) The application shall be upon originating notice in accord- ance with the" practice of the Supreme Court and shall be made, (a) in every case in which it is sought to commence or con- tinue proceedings in the Supreme Court, in the County of York to a Judge of the Supreme Court sitting in Cham- bers, and in any other county or in a district to the local where the opinion is expressed that the Manitoba statute of 1914, familiarly known as the Moratorium Act, should be construed strictly. In the annotation to the last mentioned case in 22 D.L.R. 865 ff., there is a useful note of some decisions under British and Manitoba moratory statutes. 744 CHAPTER XXXVI. MORTGAGORS' RELIEF ACT. Judge of the Supreme Court sitting in Chambers or to a Judge of the Supreme Court sitting in Chambers; (b) in every case in which it is sought to exercise some right or remedy or take any proceeding or do any act out of court, in the County of York to a Judge of the Supreme Court sitting in Chambers, and in any other county or in a district to the local Judge of the Supreme Court, or to a Judge of the Supreme Court sitting in Chambers; (c) in every case in which it is sought to take or continue pro- ceedings in a county, district or division court, to the judge of the proper county, district or division court. 8. (1) Subject to the provisions hereinafter contained, no for- feiture of any interest acquired under a contract for the sale or purchase of land or any interest therein, given, made or entered into prior to the fourth day of August, 1914, shall take effect or be deemed to have taken effect since the fourth day of August, 1914, until after an order made by a judge as provided for in section 2. (2) Subject to the provisions hereinafter contained no principal money secured or payable by any mortgage of or contract for pur- chase or sale of land, made or entered into prior to the 4th day of August, A.D. 1914 (or any extension or renewal thereof made or entered into after the 4th day of August, 1914) shall be deemed to be due or in default so as to affect or make inoperative any provi- sions therein for discharging, releasing or conveying any portion or portions of the land thereunder in accordance with the terms or provisions therefor in such mortgage or contract contained, the operation of such provisions being hereby extended so long as the payment of such principal is not enforceable under the provisions of this Act; provided, however, that should the vendor or mortgagee claim a readjustment of the amount to be paid for a discharge, release or conveyance of one or more portions in order to ensure sufficient security for the amount of principal remaining unpaid, upon failure to agree thereon such claim shall be settled by the Judge. (6). 392. Excepted cases. 4. (1) Subject to the provisions hereinafter contained, sections 2 and 3 shall not apply to any contract for sale or purchase or to any mortgage [made or entered into after the 4th day of August, 1914, or to any extension or renewal (c) made or entered into after (B) Sub-s. 2 was added in 1918 by 8 G. 5, c. 26, s. 1. (c) This section applies to the case of a mortgage which in form is a new mortgage made since the date mentioned, but which in substance and fact is a renewal or^ extension of a mortgage prior to that date. Appelbe v. Windsor Security Co., 1917, 41 O.L.R. 217, 40 D.L.R. 256, s.c. 1918, 42 O.L.R. 16. 392. EXCEPTED CASES. 745 the 4th day of August, 1914, of a mortgage made or entered into prior to that date where such extension or renewal is for not less than three years, and the rate of interest provided for in the original mortgage is not increased by such -extension or renewal (d)], nor to the proceedings taken for the recovery of interest (e) (including arrears of interest which may under the terms of any such mort- gage or extension or renewal have been or may be added to the principal money secured thereby) or rent or taxes or insurance or other disbursements for which the mortgagor was liable in the first instance, and as to which he is in default, nor to any proceedings or act done by a mortgagee in possession on the 4th day of August, 1914, with respect to the land or interest in land of which he is the mortgagee, nor to proceedings taken for the recovery of interest, taxes or insurance or other disbursements payable by the mortgagor in the first instance under a mortgage and paid or tendered on his default by the holder of a subsequent mortgage of the same lands. (2) No thing in this Act shall apply to or affect any right or remedy now exerciseable for the enforcement of any mortgage or other security of a like nature made or entered into for the purpose of securing the bonds or debentures of any corporation, but the holders of any such bonds or debentures, any trustee for them, or the mortgagee named in any such mortgage as trustee or otherwise shall have and may exercise any such right or remedy whether the same is conferred by the general law or acquired under any such mortgage or other security as fully and effectually as if this Act had not been passed. (3) Where default is made in payment of interest, rent, taxes, insurance or other disbursements which the mortgagor or purchaser has covenanted or undertaken to pay, the mortgagee or vendor, his assignee, or personal representative shall have the same remedies, (d) The words within the square brackets were substituted in 1916 by the statute 6 G. 5, c. 27, s. 1, for the words "or extension or renewal thereof made or entered into after the fourth day of August, 1914." In other words, under the statute as amended, pro- ceedings may be taken by a mortgagee without leave either upon a mortgage made after the 4th of August, 1914, or upon a mortgage made prior to that date which has been renewed or extended since that date for a period of three years or over at the old rate of interest or at a smaller rate. (e) The onus of showing that claim is one of the excepted cases is upon the mortgagee. The exception as to interest applies only to interest contracted, in the ordinary manner, to be paid, that is, to the regular gales of interest falling due at the periods mentioned in the mortgage, and does not apply to interest accruing de die in diem by reason of a special provision in the mortgage. George v. Lang, 1916, 36 O.L.R. 180, 30 D.L.R. 502. 746 CHAPTER XXXVI. MORTGAGORS' RELIEF ACT. and may exercise them to the same extent, and the consequences of such default shall in all respects be the same as if this, Act had not been passed (/), but where such interest, rent, taxes or other dis- bursements are paid into court or tendered to the mortgagee, vendor, assignee or personal representative he shall not continue any pro- ceedings already commenced by him without the order required by section 2 or by section 3, as the case may be, [except that in the case of the money being paid into court the plaintiff shall, if he so elects, have the right to take the money out of court and tax the costs of the proceedings as provided by the Consolidated Rules of Practice in an ordinary action; and in the case of the money being tendered the mortgagee or vendor or his assignee or personal repre- sentative shall be entitled, to be paid costs of the proceedings already taken, the amount of such costs if not agreed upon to be taxed by the Taxing Officer of the Supreme Court in the county where the person taking the proceedings resides] (g). 393. Powers of the judge. 5. (1) On any application the Judge may grant the leave applied for, or if he is of opinion that time should be given to the person liable to make any payment on the ground that he is unable immediately to make the same by reason of circumstances attri- butable directly or indirectly to the present war, the Judge may, in his absolute discretion, after considering all the circumstances of the case and the position of all the parties, by order refuse to permit the exercise of any right or remedy, or may stay execution or postpone any forfeiture or extend the time for the expenditure of any money or the making or providing any such improvements or- services, as the case may be, for such time and subject to such con- ditions as he thinks fit (7i). (/) In case of default in payment of interest, rent, taxes, insur- ance or other disbursements which the mortgagor or purchaser has covenanted or undertaken to pay, the mortgagee or vendor is un- trammelled by the statute, that is to say, he may pursue his remedies for the recovery of principal as well as interest and other charges, unless the mortgagor or purchaser pays or tenders the interest or other charges. Toronto General Trusts Corporation v. Ritchie,. 1915, 8 O.W.N. 328; Hind v. Gidlow, 1915, 8 O.W.N. 327. (g) The words enclosed within square brackets were added in 1918 by 8 G. 5, c. 26, s. 2. (h) No appeal lies from the order of a judge granting or refus- ing leave to proceed. Re George and Lang, 1916, 36 O.L.R. 382, 30 D.L.R. 504. If the mortgagee seeks to recover on the covenant against the mortgagor, and the latter is able to pay, the mortgagee should be permitted to proceed, notwithstanding that the mortgagor- 393. POWERS OF THE JUDGE. 747 (a) Where the judge has made an order extending the time for the expenditure of money or for making or providing the improve- ments or services mentioned in clause e of subsection 1 of section 2, the order shall apply to any proceedings taken or sought to be taken by any other owner or purchaser of land in respect of any default in fulfilling the same contractual obligation with respect to other lands laid down upon the same plan or subdivision. (2) The Judge may give directions as to the service of notice of the hearing of the application upon any person whom he deems a proper party to the proceedings, and may adjourn the hearing for that purpose, or he may dispense with service of the notice of the application upon any party who appears to have abandoned his interest in the property if the Judge considers that service of the notice would occasion useless or unnecessary expense or delay. 6. It shall not be necessary to support any such application by affidavit or other evidence, except such evidence, if any, as may be necessary to show the nature and extent of the relief required, but if any contest arises between the parties the judge to whom the application is made may make such requirements or give such directions as to evidence on the part of any party as the judge may deem proper. 7. The conditions upon which the order may be made may Include the giving of any undertaking, or the deposit in court or otherwise of any security, or the appointment of a- receiver or the granting of an injunction. 8. The costs of the application shall be in the discretion of the judge, who shall fix the amount of the same, and he may direct that they be added to the mortgage or other debt (i). may not be entitled to leave to proceed against the purchaser of the equity of redemption. Beswetherick v. Griesman, 1915, 8 O.W.N. 439; cf. Re Beswetherwick and Greisman, 1915, 8 O.W.N. 566. The fact that the mortgagor will be obliged to pay a higher rate of interest in order to pay off the mortgagee's claim is not sufficient ground for refusing leave to the mortgagee to proceed. Re Central Canada Loan and Savings Co. and Yanover, 1915, 8 O.W.N. 522. In particular circumstances it may be proper to put the mortgager upon special terms, e.g., to require him to pay interest at an in- creased rate, and to pay over on account of principal the net revenue of the mortgaged premises, or the excess of the net revenue over the interest. He Hutson and Davidson, 1918, 13 O.W.N. 475; cf. In re Jobson's Application, [19181 W.N. 14. (i) It is usual for the judge to allow to the mortgagee his costs of the application, payable within a limited time. Re Shepard and Rosevear and Moyes Chemical Co., 1918, 42 O.L.R. 184, at p. 187. 748 CHAPTER XXXVI. MORTGAGORS' RELIEF ACT. 9. An order made under this Act may, if subsequent circum- stances render it just to do so, be suspended or discharged or other- wise varied or altered upon application to a Judge or local Judge of the Supreme Court, or to the Judge of the proper County or District or Division Court as the case may be. 10. Where an action or other proceeding has been taken in court upon a mortgage or contract to which section 2 applies upon the trial of any issue arising in the action or proceeding, the judge, whether an application or order has or has not been made as pro- vided by section 2, may exercise the discretion and make the order provided for by that section or by section 5. 11. The powers conferred by this Act shall be in addition to and not in derogation of any other powers of the court. 394. Retroactive operation. 12. (.1) This Act shall take effect as from the fourth day of August, 1914, but where any" proceeding has been taken or act done or any event has taken place since the fourth day of August, 1914, and prior to the passing of this Act, which it is declared by sections 2 and 3 shall not be taken or done or take place without the order of a judge, a Judge of the Supreme Court sitting in chambers, the local Judge of the Supreme Court, or the judge of the proper county or district or division court, as the case may be, upon application made as provided in section 2, and upon such terms and subject to such conditions as he may deem just, may confirm and validate such proceeding or act or declare that the event has taken place. ' (2) An order made under subsection 1 may be registered in the proper registry or land titles office. (3) Where in a land titles office any transfer has been registered on or after the fourth day of August, 1914, made under a power of sale contained in a mortgage or charge executed before that date, or where any transfer or vesting order carrying out the sale under the authority of an order or judgment of a court made for the purpose of enforcing such a mortgage or charge, has been so registered or where proceedings on a final order of foreclosure of such a mortgage or charge have been entered, the proper master of titles as soon as may be after the passing of this Act shall enter a note on the register of the lands prohibiting further dealings with the land transferred or in respect of which the foreclosure has been entered. (4) The note shall refer to this Act and shall have the effect of preventing further dealings with the land until a confirmatory order has been obtained under subsection 1 and duly registered or such other proceedings have been taken as will confirm the title obtained or will revest the title in the owner of the equity of redemp- tion. 394. RETROACTIVE OPERATION. 749 395. Power to make rules. 13. The powers of the Supreme Court to prescribe rules shall apply to the making of rules for carrying into effect the provisions of this Act and for regulating the practice and procedure under it where the same are not regulated by the existing rules. 396. Lands situate or mortgage made without Ontario. 13a. The provisions of this Act shall apply to any actions or proceedings which are taken in any court in Ontario, notwithstand- ing that the lands in question in the action or proceeding are situate without Ontario, or the agreement or mortgage or other contract was made and entered into outside Ontario (j). 397. Duration of ike statute. 14. The Lieutenant-Governor in Council may at any time deter- mine the operation of this Act or provide that this Act shall have effect subject to such limitations as may be contained in the Order in Council, but subject to the operation of such Order in Council this Act shall have effect during the continuance of the present war and for a period of nine months thereafter, unless in the meantime a Session of this Legislature is held, and in that case this Act shall cease to have effect at the expiration of thirty days from the close of such Session (fc). (;) This section was added in 1916 by the statute 6 G. 5, c. 27, s. 2. A court in Ontario will not restrain a mortgagee or vendor from taking proceedings in another province even though the land in question is situate in Ontario. O'Connor v. Charleson, '1916, 10 O.W.N 35. (fc) In 1916 by the statute 6 G. 5, c. 27, s. 3, it was provided that "Notwithstanding anything contained in section 14 of The Mortgagors' and Purchasers' Relief Act, 1915, all the other provisions of the said Act shall continue in force and have effect until the expiration of thirty days from the close of the next session of the Legislature to be held hereafter." A further extension in similar terms was made in 1917 by the statute 7 G. 5, c. 27, s. 59, and in 1918 by 8 G. 5, c. 26, s. 3. Index Absolute conveyance, Evidence that it is a mortgage, 51 Circumstances showing intention, 52 Oral evidence admissible, 52 Absence, see Limitation of actions Acceleration clause, Short form of, 377 Special forms of, 381, 382 Relief from default, 378, 379, 380 Mortgagee not bound to avail himself of, 382 Mortgagee must accept if he claims all, 382 right to redeem arises, 491 Saskatchewan statute, 379 Manitoba statute, 379 Effect of clause, as to consolidation, 140 in action on covenant, 379, 381 in foreclosure action, 380, 381 statutes of limitation, 543 power of sale, 651, 652 Stay of action on payment of arrears, 446 Accord and satisfaction, Part performance accepted in satisfaction, 502 . Payment "in full," 502 Account, Mortgagor's right to, 573 Limitation of action for, 516 . After sale under power of sale, 573 Accounting between mortgagor and mortgagee, Right of mortgagor to an account, 573 in redemption action, 511 in foreclosure action, 420 after sale by mortgagee, 573 Proceedings on taking accounts, 574 752 INDEX. Accounting between mortgagor and mortgagee continued Items included in accounts, 575 amount of principal, 575, 576 taxes paid, 576 other items, 575, 576 Accounting by mortgagor in possession, 358, 577 Waste by mortgagor in possession, 577 See Mortgagee -in possession, Master's office, proceedings in, Interest, Costs Accretions, Mortgagee entitled to, 20 Goodwill attached to premises, 20 Acknowledgment, see Limitation of actions Action, see Account, Action on the covenant, Action for fore- closure or sale, Action for possession, Action for redemption, Limitation of actions, Action on the covenant, Concurrent remedies of mortgagee, 349 Personal remedy against covenantor, 366 Mortgage implies obligation to pay, 367 Who may sue on the covenant, 372 personal representatives or trustee, 372 cestui que trust, 373 Who may be sued on the covenant, 373 trustee covenantor, 370 corporate covenantor, 370 mortgagor notwithstanding transfer, 373 transferee of equity not liable, 373 personal representative, 374 married woman, 374 infant, 24, 375 When the right to sue arises, 375 Acceleration of payment, 377 Amount recoverable, 368 Action under land titles system, 368 Short form of covenant, 369 restriction of liability. 369 Principal and interest sued for separately, 370 dividing cause of action, 371 INDEX. 753 Action on the covenant continued Mortgagee entitled to deficiency, 383 after sale under power of sale, 383 after sale under decree, 464 In other cases mortgagee disentitled to sue, if unable to reconvey, 384, 385 Mortgagee may sue after foreclosure, 385, 386, 454, 485 Right to sue may be barred or extinguished, 383 Stay of action on payment of arrears, 447 See Equity of redemption, transfer of, Limitation of actions Action for foreclosure or sale, .Nature of foreclosure, 41, 388 Mortgagee usually entitled to foreclosure, 388 or sale at his option, 389 No foreclosure unless condition broken, 389 Sale only in case of mere charge, 390 In case of land without jurisdiction, foreclosure but not sale, 391 No foreclosure against crown, 392 Foreclosure by chartered bank, 392 When right to foreclose arises, 393, 389 How right is lost, 393, 394 Writ of summons for foreclosure, combination of claims, 395 form of endorsement, 396 specially endorsed writ, 398 Plaintiffs in the action all or both mortgagees, 399 trustees, 399, 400 personal representatives, 399, 400 partners, 400 married woman, 400, 401 assignee of mortgagee, 401 sheriff, under execution, 401 Original defendants, persons interested in equity of redemption, 401, 405 except subsequent encumbrancers, 401 or by special direction of court, 402 754 INDEX. Action for foreclosure or sale continued Original defendants continued the mortgagor, 405 purchaser of the equity, 407 lessee of the mortgagor, 408 personal representatives, 409, 410 heirs at law, 409, 410 wife or husband of mortgagor, 412 surety for the mortgagor, 414 prior mortgagee not a defendant, 403 unless relief sought, 404 or priority claimed, 404 Pleadings, general rules, 415 altering or extending claim, 416 what must be pleaded, 417 Interlocutory judgment, 418 if infants interested, 419 if all parties sui juris, 420 insertion of special terms, 420, 421 form of,. without reference, 422 form of, with reference, 424 effect of, 424, 425 Stay of action on payment of arrears, 446 Change of state of account, 447 Final order of foreclosure, 448 how obtained, 450 opening foreclosure, 451, 452 enforcing covenant, 454 Action for sale, 455 Sale in foreclosure action, 456- Judgment for deficiency, 464 Foreclosure after abortive sale, 464 Sale and foreclosure under Land Titles Acts, 466 sale in registrar's office, 474 foreclosure in registrar's office, 480 opening foreclosure, 469, 474 enforcing covenant, 485 INDEX. 755 Action for foreclosure or sale continued .See Master's office, proceedings in, Sale under judgment for sale, Limitation of actions, Sale and foreclosure under Land Titles Acts. Action for possession, Concurrent remedies of mortgagee, 349 Possession as between mortgagor and mortgagee, 19, 350 In case of equitable mortgage, 350, 351 Enforcement of right to possession, 351, 352, 353 In case of subsequent mortgage, 352 Mortgagee's right apart from redemise, 19, 353 Proviso for quiet enjoyment till default, 355, 357 Covenant for quiet enjoyment after default, 356 Effect of attornment clause, 357 Bights of mortgagor in possession, 358 actions against third parties, 358 Rights of mortgagee against third parties, 360 against tenant of mortgagor, 249 Possession under Land Titles Acts, 360 In Ontario, 360, 361, 363 In Manitoba, 361-365 In Saskatchewan, 361-365 In Alberta, 363-365 In Northwest Territories, 365 See Limitation of actions Action for redemption, The right to redeem, 486 equity of redemption, 486 successive mortgages, 327, 328, 508 on equitable terms, 487 refusal of leave, 487 laches, 487, 488 Land outside jurisdiction, 489 When right to redeem arises, 490 not before maturity, 490 acceleration clause, 491 after five years, 491, 492 Interest or notice after default, 493 apart from statute, 493, 494 756 INDEX. Action for redemption continued Interest or notice after default continued Ontario statute, 495 Alberta rule, 496 Reconveyance or discharge on payment, 496 Who may be plaintiffs, 503 interested in equity of redemption, 503 or sued for mortgage debt, 503. 506 assignee of equity, 504 subsequent mortgagee, 504 limited interests, 504, 505 tenant of mortgagor, 504 "Who must be defendants, 506 person interested in equity if not plaintiff, 505, 506 mortgagee or representative, 506 purchasers from mortgagee, 507 subsequent mortgages, 507, 508 redeem up, foreclose down, 509 Writ of summons, 509 Interlocutory judgment, 510 Proceedings in master's office, 511 Foreclosure on default, 512 subsequent proceedings, 512 See Equity of redemption, Payment, Tender, Master's of- fice, proceedings in, Limitation of actions, Administration of estates, Eeal property administered as personalty, 268 As between beneficiaries, order of administration remains, 269 except as altered by statute, 269, 270 Change made by Locke King's Act, 269, 271 Mortgaged land primarily chargeable with mortgage debt, 271, 272 In other cases personalty primarily liable for debts, 271, 272 Order in which assets applied, 270 Estates of insolvent deceased persons, 273 Debts payable rateably, 273 Creditor holding security, 274 See Devolution of estates INDEX. 757 Administrator, see Executors and administrators, Devolution of estates, Transmission under Land Titles Acts Advances, see Subsequent advances Advertisement, Sale under judgment for sale, 460 Sale under Land Titles Acts, 475, 482 Sale under power of sale, 668 Agent, Notice to, imputed to principal, 99, 100, 121 Agent of mortgagee in possession, 488 Power of attorney to sell land, 647 Agreement To lend money, 80 To borrow money, 80 To give security, 75, 80 See Equitable mortgage Ancient forms of mortgage, 1 Antecedent debt, see Consideration Application, Of payments, 610 in keeping down interest, 610 by mortgagee in possession, 583, 596, 597 . Of proceeds of sale, after sale under power, 680 after sale under judgment, 463 under Land Titles Acts, 478 Of insurance money, 726 Arrears, see Acceleration clause, Distress, Interest ,- Limitation of actions Assignment, Chose in action, 94, 195 Equitable assignment, 94, 196 Subject to the equities, 198 See Assignment of mortgage, Leasehold mortgage, Equity of redemption, transfer of Assignment of mortgage, Transfer of debt and land, 191 Transfer of debt without land, 191, 192 Transfer of land without debt, 192 . Form of assignment, 192, 194 758 INDEX. Assignment of mortgage continued Words sufficient to convey land, 193 Assignment of mortgage debt, 194 Notice to mortgagor not essential, 196 advisable to give notice, 197 Payments by mortgagor without notice, 197 Concurrence of mortgagor advisable, 198, 201 Assignee takes subject to state of account, 198 In case nothing advanced on mortgage, 198 Effect of receipt in mortgage, 199 Rents or interest in arrear, 201 Assignee takes subject to set off, 201 and to existing equity, 201, 202 Equity to set aside or reform mortgage, 202, 205 Purchase without notice, 203, 204 Liability of assignor to assignee, 206 Assignor guaranteeing payment, 207 Sub-mortgage or derivative mortgage, 207, 208 Rights and powers of assignee, 208, 209 Collateral securities, 209 Land Titles Acts, 194, 200, 209 See Sale under power of sale, Distress Assignment of mortgage, right to, Reconveyance to person best entitled, 324, 328 Statutory right to assignment of mortgage, 326 reason for the statute, 326 if mortgagor entitled to redeem, 327 instead of reconveyance, 328 The amending statute, 328 rights of successive encumbrances, 329 Priorities unaffected by the statute, 330 right to keep mortgage alive, 330 second mortgage by mortgagor, 331 second mortgage by purchaser, 331 if purchaser assumed mortgage, 332 if purchaser did not assume mortgage, 333 On the same terms as reconveyance, 335 subject to rights of others, 335 partial, owner of equity, 335 Mortgagee in possession, 336 INDEX. 759 Assignment of mortgage, right to continued Mortgagee in possession continued not obliged to assign mortgage, 336, 589 but must reconvey, 336 Assignments and Preferences Act, 12, 13, 14, 275, Assigns, What powers may be exercised by, 208, 209 Sale under power of sale, 643, 644, 646 Distress, 696 Attornment, Tenancy created by attornment, 696, 697 Tenancy by estoppel, 698 Requisites of tenancy, 701, 702 Distress in case of attornment, 700 On what goods mortgagee may distrain,' 705 What arrears may be recovered, 709 Attornment under Land Titles Acts, 710 Possession in case of attornment, 357 Form of attornment, 697, 698 See Distress Bar of dower, see Dower Bonus, see Collateral advantage Bracton, 2, 4 Building loan, 124, 125 Capacity, To make legal mortgage, 24 Incapacity of infant, 24 Capacity of married woman, 25 Cestui que trust, Against whom trust is enforceable, 28 Mortgage made by, 74 Third party suing on contract as, 373, 718 May compel trustee to lend name, 372 Statutes of limitation, 517, 524 Chancery, Court of, see Equity, Law and equity in Upper Canada Charge, see Equitable mortgage, Land Titles Acts Chattel mortgage acts, 84 Chattels, see Fixtures, Property Chose in action, assignment of, 195, 196 760 INDEX. Chose in action, assignment of, continued Priorities between different assignees, 94 Subject to the equities, 198 Clogging the equity of redemption, 45 Coke on Littleton, 3, 36, 40 Collateral advantage, When stipulation for, is valid, 43 Bonus in addition to interest, 44 Collateral security, Effect of foreclosure on, 454, 455 Released by release of debt, 301 Common law, Mortgage at law, 3, 17, 58 Sources of law of mortgage, 5 Conveyance of legal estate, 17 Forfeiture on breach of condition, 18, 36, 38 Possession of land and title deeds, 19 Accretions and fixtures, 20 Capacity to make legal mortgage, 24 Incapacity of infant, 24 Capacity of married woman, 25 Capacity of trustee, 27, 30 Incapacity of cestui que trust, 28 Power of personal representative, 29, 30 Power of devisee, 32 Legal mortgage in equity, 36 Valuable consideration, 33 See Law and equity in Upper Canada. Compound interest, 611 Concealment of encumbrance, 11 Concealed fraud under Limitations Act, 545 Concurrent proceedings, Right of mortgagee to take, 349, 395 Not after notice of sale or demand, 662, 663 Nor by two separate actions, 396 Condition, breach of condition, Forfeiture at common law, 18 Relieved against in equity, 38 Conditional sale, see Fixtures INDEX. 761 Conditions of sale, Sale under judgment for sale, 461 Sale under power of sale, 671 Sale under Land Titles Acts, 475 Conduct of sale, Sale under judgment for sale, 460 Sale under power of sale, 665 Sale under Land Titles Acts, 475, 476 Consideration, Past consideration not sufficient, 33 Extension of time sufficient, 34 Forbearance to sue, 34 Doubtful right of action, 34 Absence of, as defence against assignee, 198 Under Registry Act, 112 Under Land Titles Acts, 155, 179, 180 See Priorities Consolidation, Equitable doctrine of consolidation, 136 Simplest form of, 137 Not dependent on legal estate, 138 Mortgages must be overdue, 138 Default must be continuing, 139 Effect of transfer of the equities of redemption, 140 Mortgages must be by same mortgagor, 140 Effect of transfer of the mortgages, 140 Effect of acceleration clause, 140 Different mortgages to one mortgagee, 141 Against whom mortgagee may consolidate, 141 Mortgages to different mortgagees, 142 Effect of Registry Act, 145, 146 Effect of English Conveyancing Act, 145 Consolidation aijd tacking distinguished, 147 So-called tacking to avoid circuity of action, 149 Constitutional Law, see Legislative jurisdiction Constructive notice, see Notice Conveyance, Use of the word "grant," 9 Words appropriate to create mortgage, 7, 9 "Words of limitation, 9 762 INDEX. Conveyance continued Conveyancing and Law of Property Act, 7 What conveyance of land includes, 10 Pursuant to power of sale, 676 See Legal mortgage Conveyance with option to repurchase, 51 Where intended to be mortgage, 51 Extrinsic evidence admissible, 52 Conveyancing and Law of Property Act, 7 Costs, General principles, 617 Negotiating and completing loan, 618 not part of mortgage debt, 618 common law debt of mortgagor, 618 Incurred in protecting security, 619 added to mortgage debt, 619 mortgagor not personally liable, 619 Mortgage action, 622 mortgagee entitled to costs, 622 unless guilty of misconduct, 623 effect of tender, 624 what costs include, 626 proceedings in master's office, 626, 435 subsequent encumbrancer, 627 Taxation of costs, 628 sale proceedings, 628 costs of solicitor-mortgagee, 628, 629 at instance of mortgagor, 629 Courts, Concurrent remedies in different courts, 349 See Law and equity in Upper Canada Covenant, Agreement for usual covenants, 80, 81 That security is good and valid, 206 Transferee of equity of redemption, 232 See Action on the covenant, Five insurance, Implied cov- enants, Short Forms of Mortgages Act Creditor, Under statute 13 Elizabeth, 11, 12 ,See Execution creditor Creditors' Relief Act, 124, 479 INDEX. . 763 Crops, see Growing crops Crown, Foreclosure not ordered against, 392 Application of Limitations Act to, 538 Curtesy, tenancy by the, At common law, 295, 296 In equity of redemption, 296 Election under Devolution of Estates Act, 297 Abolished in western provinces, 296 Death, see Devolution of estates Debenture, see Floating charge Debt, Debt or loan implied, 367 See Consideration, Interest, Limitation of actions Default, In payment, what constitutes, 376 See Acceleration clause, Action on the covenant, Action for possession Defeasance, proviso for, Form of, 299 Effect of, 300 Demand, mortgage payable on, 376 Deposit, In order to obtain judgment for sale, 457 By purchaser at time of sale, under power of sale, 672 under judgment for sale, 460, 461 Deposit of title deeds, 77 Derivative mortgage, Form of, 207, 208 Rights of mortgagee, 208 Reconveyance in case of, 302 Discharge in case of, 313 Parties to foreclosure action, 407 Mortgagors Relief Act, 742 Devolution of estates, Devolution of Estates Act, 219, 268 Vesting of estate in beneficiaries, 222 Devolution of equity of redemption Prior to Devolution of Estates Act, 266 764 INDEX. Devolution of estates continu-ed Devolution of equity of redemption continued Since the statute, 268 Locke King's Act, 271 Estates of insolvent deceased persons, 273 Escheat of mortgagor's interest, 267 Devolution of mortgagee's estate Mortgage security is personalty, 216 Former devolution of legal estate, 217 Power of executor or administrator, 217, 218, 221 Escheat of mortgagee's interest, 218 Devolution of Estates Aet, 219 Payment if mortgagee dead, 222 See Administration of estates, Evecutors and administra- tors, Transmission under Land Titles Acts Disabilities, see Limitation of actions Discharge or reconveyance, Proviso for defeasance, 299 revesting of estate, 300 When reconveyance necessary, 300 in case of sub-mortgage, 302 Obligation of mortgage to reconvey, 301, 311 Who entitled to reconveyance, 301, 302, 324 contemporaneously with payment, 301, 496 at law and in equity, 302 Surrender of leasehold term, 303 History of legislation as to discharges, 308 Statutory form of discharge, 304, 306 Registration of discharge, 303, 304, 305 in case of equitable mortgage, 307 Effect of registration of discharge, 308 operates as reconveyance, 308, 309 revests mortgagor's estate, 311, 312 Subrogation on payment, 128, 305, 312 Who may execute discharge, 308, 309 in case of sub-mortgage, 313 in case of mortgagee's death, 314, 315 Vesting order, if mortgagee dead, 317 if mortgagee absent, 319, 320 INDEX. 765 Discharge or reconveyance continued Vesting order continued sale subject to encumbrance, 318 Discharge under Land Titles Acts, Manitoba, 321, 322 Saskatchewan, 321, 323 Alberta and N.W.T., 322, 323 if mortgagee absent, 322, 323 Ontario, 323 See Assignment of mortgage, right to, Merger Distress, No right of, unless stipulated for, 694 or under attornment clause, 694 License to distrain under short form, 695 Limited to goods of mortgagor, 705, 706 to goods not exempt from execution, 706 to one year's arrears as against creditors, 709 to six years' arrears inter partes, 710 Right to distrain under attornment clause, 700, 705 Arrears of interest after assignment, 696 Limitation of distress or action to recover land, 536, 546 Assignee of mortgage distraining, 696 See Attornment Dower, Dower in legal estate, 277 wife of mortgagee, 277 Owner of legal estate cannot defeat right, 278, 287 Requisites of dower, 279 When dower does not attach, 280, 295 Election under Devolution of Estates Act, 281 Dower in equity of redemption, statute of 1834, 281 if husband dies beneficially entitled, 282 statute of 1879, 282 purchase subject to mortgage, 282, 283 mortgage of legal estate, 283, 284 quantum of dower, 286 Effect of bar of dower in mortgage, 284, 287 Modes of barring dower, 290, 291, 294, 295 Forfeiture of dower, 291 766 INDEX. Dower continued In case wife a lunatic, 291, 292 In case of absence for five years, 293 Dower under English statute, 278 in British Columbia, 278 Abolished in other western provinces, 278 mortgage of homestead, 278, 279 Basements, Included in conveyance of land, 10 Effect of Registry Act as to, 113 Under Land Titles Acts, 165, 166 Encumbrance, Statutory definition, 8 In western provinces, 156, 157 Encumbrancer Ordinary meaning of, 8, In western provinces, 157 Encumbrancee, 157 Equal equities, 94 First in time prevails, 94 The law prevails, 97 Equitable assignment, 94, 195, 196, Subject to the equities, 198 Equitable interest, Nature of equitable interest, 101, 54 Against whom enforceable, 28, 53 Unregistered equitable interests, under Registry Act, 115 under Land Titles Acts, 173, 177 Enforceable on equitable terms, 55 When court will not enforce, 55 Mortgage of, 74 See Priorities Equitable jurisdiction, See Law and equity in Upper Canada Equitable mortgage, Definition, 71, 72 How created, 72 Under Land Titles Acts, 73, 78, 182 INDEX. 767 Equitable mortgage continued Mortgage of equity of redemption, 73, 229 Mortgage of other equitable interest, 74 Instrument insufficient to convey legal estate, 75 Defect of form, 75 Agreement to give mortgage, 75 Charge on land, 76 Deposit of title deeds, 77 Remedies of equitable mortgagee, 80, 686 Foreclosure or sale, 80 Right to possession, 350, 351 Statute of Frauds, 72, 73, 77, 78 Specific performance, 80 Floating charge, 82 Registration of equitable mortgage, 107, 119, 122 of discharge, 307 See Equitable interests, Registry Act, Land Titles Acts, Receiver Equity, legal mortgage in, .Sources of law of mortgage, 5 Mortgage regarded as security merely, 37 Equitable right to redeem, 37 Equitable right to foreclose, 40, 41 Mortgage cannot be made irredeemable, 41 Exception in case of family arrangement, 42 Once a mortgage always a mortgage, 42 Stipulation for collateral advantage, 43 Effect of repeal of usury laws, 44 Clogging the equity of redemption, 45 Life insurance effected with mortgagee company, 49, 50 Disguised forms of mortgage, 51 Conveyance upon trust to sell, 51 Conveyance in form of absolute conveyance, 51 Conveyance with option to repurchase, 51 Extrinsic evidence of intention, 52 Bar of equity of redemption, 55 Extinguishment of equity of redemption, 55 Release of equity of redemption, 55, 56 Nature of equity of redemption, 54 768 INDEX. Equity, legal mortgage in, continued See Law and equity in Upper Canada, Priorities, Equit- able mortgages, Equity of redemption, Nature of discussed, 54 Not strictly speaking an estate, 54 Not even an absolute right, 55, 487 Distinguished from contractual right, 45, 229 Contradicts language of mortgage, 38 Extinguishment of equity of redemption, 55, 56, 344 Consolidation of mortgages, 136 Laches, effect of, 487 See D evolution of estates, Curtesy, tenancy by the, Dower, Transmission under Land Titles Acts, Limita- tion of actions, Execution creditors of mortgagor Equity of redemption, transfer of, Mortgage of equity of redemption, 73, 229 Absolute transfer of, 230 Right to surplus after sale, 232 Assignment of incidental rights, 231 Right of transferee to rents, 231 Right to benefit of covenants, 232 Subject to state of account, 233 Mortgagor remains liable to mortgagee, 233 Transferee not liable to mortgagee, 233 unless indemnity assigned, 238, 240 liable in Alberta, 238 Liability if separate parcels sold, 243 Purchaser assuming mortgage, 332 Purchaser not assuming mortgage, 333 Consolidation against transferee of equity, 141, 142 See Indemnity, mortgagor's right to, Marshalling, As- signment of mortgage^ right to Escheat, Mortgagee's interest, 218, 219 Mortgagor's interest, 267 Estoppel, Tenancy by estoppel, 698 Mortgagor estopped as against assignee, 198 Estate by estoppel, 126 INDEX. 769 Evidence, see Oral evidence Exchange, under power of sale, 670 Execution creditor of mortgagee, Rights of execution creditors, 211 Seizure of mortgage under execution, 211 Discharge by sheriff or bailiff, 214 Execution creditor of mortgagor, When lien attaches to land, 124 Priorities, rule as to, 124 under Registry Act, 124 under Land Titles Acts, 169 Rights of execution creditors, 259 When entitled to notice of sale, 260 Equity of redemption, formerly could not be sold, 60, 61, 259 law changed by statute, 61, 259 after death of mortgagor, 259 in case of two mortgages, 260, 261 Seizure and sale of equity of redemption, 261 Equity must be sold as a whole, 262 Effect of seizure, sale and conveyance, 263 What title purchaser acquires, 264 Who may purchase, 264 Purchase by mortgagee, 264, 265 Receiver by way of equitable execution, 260 Mortgagee paying prior execution, 261 Subsequent encumbrancer, 260 Party in foreclosure action, 428 Limitation of action, 522, 523 Executors and administrators, Power to mortgage or sell, 29, 30 ' Execution of direction in will, 30 Devise charged with payment, 31 Mortgage by devisee, 32 Estate of mortgagee devolves upon, 221 Entitled to mortgage money, 216, 217 May sue on the covenant, 372 May sue for foreclosure or sale, 399, 400 May reconvey or discharge, 217, 315 770 INDEX. Executors and administrators continued Foreign executor may discharge, 316 but not foreign administrator, 316 Estate of mortgagor devolves upon, 268 May be sued on the covenant, 374 Defendants in action for foreclosure or sale, 268, 409 See Devolution of estates, Administration of estates, Transmission under Land Titles Acts Exemptions, see Distress Expenses, see Accounting betiveen mortgagor and mortgagee, Mortgagee in possession Extinguishment of mortgage, see Discharge or reconveyance. Merger Falsification, 574, 575 Feoffment, 9 Final order of foreclosure, 448 Form and effect, 449 How obtained, 450 "When refused, 451 Opening foreclosure, 451, 452, 453 Mortgagee may enforce covenant, 454 Fire insurance, Insurable interest, 712 of mortgagor, 712 of mortgagee, 714 of vendor or partial owner, 714 Right or obligation to insure, 714 Short form of covenant, 714, 719 Statutory power of mortgagee, 715, 635 Insurance in name of mortgagor, 716 Mortgagor is the assured, although loss payable to mortgagee, 717 cr although policy assigned, 719 Effect of transfer of property, 713, 720 When mortgagee entitled to sue, 717. 718, 723 Mortgage clause in policy, 721 effect of, 723 Insurance in name of- mortgagee, 724 if confined to his interest, 724 Insurance of partial interests, 726 INDEX. 771 Fire Insurance continued Insurer's right of subrogation, 721, 722, 723, 725 Insurance is contract of indemnity, 725 Application of insurance money, 726 Mechanics lien, 132 Fixtures, Chattels affixed to realty, 20 Degree of annexation required, 21 Evidence as to circumstances, 21 Mortgagee entitled as against mortgagor, 21 When mortgagor may remove, 22 Mortgagee's rights as against owner, 22 Vendor under hire-purchase agreement, 22 Question of priorities, 22, 23 Mortgagee as against chattel mortgagee, 23 Conditional Sales Act, 24 Between landlord and tenant, 22 Floating charge, Applicability of equitable doctrines to, 48 Usually contained in debenture, 82 Contrasted with specific charge, 82, 83 Present equitable charge, 83 When it becomes specific, 83 When postponed to mortgage or other charge, 84 When registration required, 84 Foreclosure, Nature of remedy, 41 See Action for foreclosure or sale, Master's office, pro- ceedings in, Sale and foreclosure under Land Titles Acts Foreign executor or administrator, 316 Forfeiture, Mortgagor's estate forfeited at law, 18, 36, 38 Relief against, in equity, 37, 38 Forged instrument, Under Registry Act, 112, 127 Under Land Titles Acts, 127, 156 Fraud, Must be pleaded, 417 Effect of, on priorities, 94, 96 772 INDEX. Fraud continued Effect of, under Land Titles Acts, 174, 175, 176 Concealment of encumbrance, 11 Concealed fraud under Limitations Act, 545 Frauds, Statute of, Must be pleaded, 417 Equitable mortgages, 72, 73 Deposit of title deeds, 77, 78 See Oral 'evidence Fraudulent and voluntary mortgages, Statute 13 Elizabeth, 11, 12 Assignments and Preferences Act, 12, 13, 14 Statute 27 Elizabeth, 15, 16 Glanvil, 1, 4 Good faith, purchaser in, 94, 96, 97, 98. Goodwill, when mortgagee entitled to, 20 Grant, 8, 9, 10 Growing crops, When mortgagee entitled to, 583, 584 Guarantor, Guarantee, see Surety Hire-purchase agreement, Chattels annexed to realty, 22, 23 Implied covenants In conveyance by way of mortgage, 738, 740 In mortgage of leasehold, 739 Under Land Titles Acts, 740 See Indemnity, right of mortgagor to Improvements, Under mistake of title, 587, 679, 577 When allowed to mortgagee, 585, 586, 587 Incumbrance, incumbrancer, incumbrancee, see Encumbrance, etc. Indemmty, mortgagor's right to, Transferee's obligation to indemnify, 234 express or implied, 234 Implied obligation may be negatived, by oral evidence, 235 if vendor not liable, 236, 240 Nature of obligation, 235, 236, 240 Liability of married woman, 236, 240 INDEX. 773 Indemnity, mortgagor 's right to, continued In case of sale under execution, 237, 265 Statutes of western provinces, 237, 238 Transferee not liable to mortgagee, 238, 239 except in Alberta, 238 In case obligation assigned to mortgage, mortgagee may sue, 240 but may be disentitled, 241 Obligation confined to indemnity, 240 No relation of suretyship, 242 Infant, Incapacity to make mortgage, 24 covenant to pay, 375 Defendant in action for foreclosure or sale, 409, 410 judgment against, 419 Reservation of day to show cause, 419 Service of notice of sale on, 655, 656 Instalment, Subsequent advances under mortgage, 122 See Acceleration clause Insurance Life policy issued by mortgagee to mortgagor, 49, 50 See Fire Insurance Intention, see Oral evidence, Merger Interest, When interest is payable, 599 implied contract to pay, 599 Rate of interest till maturity, 600 Parties may agree on any rate, 600 with some exceptions, 600 Sinking fund plan or blended payments, 601 rate must be stated, 601 Rate if no rate agreed on, 602, 604 Rate of interest after maturity, 602 language must be unambiguous, 602 excess paid by mistake, 603, 604 Effect of obtaining judgment, 605 Increased rate after default, 606 relief against, 606 statutory provision, 607 774 INDEX. Interest continued Increased rate after default continued new bargain valid, 608 Apportionment of interest, 608 Calculation of interest, 608, 609 from time of advance, 609 application of payments, 610 Compound interest, 611 Interest in lieu of notice, 612 after maturity, 493 after five years, 491, 492 Legislative jurisdiction, 613 See Acceleration clause, Limitation of actions Interpretation clauses, Mortgages Act, 7, 8 Conveyancing and Law of Property Act, 7, 8 Joint account, money advanced on, 224 Joint debtors or contractors, Effect of absence of one, 518 Acknowledgment by one. 519. 549 Judgment, forms of, For foreclosure with reference, 424 For foreclosure without reference, 422 For sale, 422, 424 For redemption, 510 Against married woman, 374, 422 Judgment creditors, see Execution creditors Judicature Act, see Law and equity in Upper Canada Jurisdiction, Foreclosure or sale of land outside, 391 Redemption of land outside, 489 See Legislative jurisdiction Laches and acquiesence, Bar of right to foreclose, 394 to redeem, 487, 488 Landlord and tenant, see Attornment, Distress, Leasehold mortgage, Lessee of mortgaged land, Fixtures Land, Statutory definitions, 8, 85 What conveyance of, includes, 10 INDEX. 775 Land, continued Chattels affixed to realty, 20 Land Titles Acts, Distinguished from Registry Act, 151, 152 Old system and new system, 152 Statutes of various provinces, 152 Deplorable diversity of legislation, 153 History of legislation, 467, 470 Registration of titles, 154 contrasted with registration of deeds, 154 Main object of land titles system, 155, 178 Effect of forged instrument, 156 Definition of mortgage, 156, 157 Forms of mortgage, 158, 159, 160 Forms must be followed, 161 Definition of encumbrance, 156, 157 Encumbrancer and encumbrancee, 157 Charge, under British Columbia statute, 157 under Ontario statute, 157, 158 Seal not necessary, 158 Effect of absence of consideration, 155, 179, 180 Mortgage or charge, does not transfer estate, 160, 161 operates as security merely, 160 not a legal mortgage, 160, 182 registered or statutory mortgage, 160, 161 Instrument effective upon registration, 162 The registered or statutory estate, its priority, 162 not equivalent to legal estate, 163 Certificate of title, in western provinces, 163, 164, 166 in Ontario, 164, 165 absolute or indefeasible title, 163 qualified and possessory titles, 163 Registration of transfer, 165, 166 Registration and priority of mortgages, mode of registration, 167 effect of prior registration, 168 776 INDEX. Land Titles Acts continued Registration and priority of mortgages continued registration as notice, 168 subsequent advances, 168 Executions and their priority, 169 Mechanics liens, 172, 173 Unregistered interests, in western provinces, 173. 177 may be enforceable, 177, 178 in Ontario, 178, 179 Trusts, notice of, not to be entered on register, 174 Notice of unregistered interest, 174 Fraud invalidates title, 174, 175, 176 Notice not necessarily fraudulent, 174 Doctrine of notice excluded, 175 Quaere whether statute effective, 175 Notice as evidence of fraud, 176, 177 Relation between fraud and notice, 177 Equitable mortgages, contrasted with registered mortgage, 182 may be created, 182, 73, 78 Caveats or cautions, priorities preserved by, 183, 184, 185 Remedies of mortgagee, generally, 185 classification of, 187 Action on the covenant, 368 Taking possession, 360-365 Title by possession, 568, 570 Limitation of actions, 569 Attornment and distress, 710 Discharge of mortgage, 321 Implied covenants, 740, 741 Short forms of covenants, 732 Assignment of mortgage, 194, 200, 209 Seizure of mortgage under execution, 214 See Transmission under Land Titles Acts, Sale and Fore- closure under Land Titles Acts INDEX. 777 Law and equity in Upper Canada, Common law in Upper Canada, 57 Law of mortgage, 58 Introduction of equitable jurisdiction, 61 Subsequent changes in the courts, 64 The Administration of Justice Act, 1873, 66, 349, 366, 395 The Ontario Judicature Act, 1881, 66, 349, 366, 395 The Law Reform Act, 1909, 69 Local courts of requests, 58 Local courts of common pleas, 58 Court of King's Bench, 58, 62, 64 Court of Chancery, 63, 65 Court of Common Pleas, 64 Court of Error and Appeal, 65 Court of Appeal, 66 Supreme Court of Judicature, 66 High Court of Justice, 66 Supreme Court of Ontario, 69 Lease, Power of mortgagor to lease, 257 Power of mortgagee to lease, 257 Renewal of mortgaged lease, 91 Registration of leases, 109, 111 Under Land Titles Acts, 165, 166 ,See Lessee of mortgaged land Leasehold mortgage, Generally, 85 Assignment of unexpired term, 86 disadvantages of, 87, 89 reservation of last day or hour, 87, 88 Mortgage by sub-lease, 90 disadvantages of, 90 sublease with declaration of trust, 90 Renewal of mortgaged leasehold, 91 Short Forms of Mortgages Act, 85 Implied covenants, 86, 739 Reconveyance or surrender of term, 303 Legal estate, Essential to legal mortgage, 17 Importance of legal estate, 100, 101, 162 778 INDEX. Legal estate, continued Distinguished from equitable interest, 101 Purchase of, for value without notice, 101 Subsequent receipt of notice, 103 Subsequently getting in legal estate, 103 Better right to call for, 103, 104 Effect of Registry Act, 114, 125, 126 Doctrine of tacking, 138, 147 Effect of Land Titles Acts, 162, 163 See Priorities, Tacking Legal mortgage, Form of, stereotyped, 17 Requisites of, 17 Distinguished from equitable mortgage, 71 See Common law, Equity, legal mortgage in, Priorities, Legal estate, Land Titles Acts Legal tender, 500 Legislative jurisdiction, Payment of mortgage after five years, 491, 492 As to interest and mortgages, 613 Lessee of mortgaged land, Leases before and after mortgage, 249 importance of distinguishing, 249 Mortgagee 's rights if lease paramount, becomes landlord, 250 not entitled to possession, 250 when entitled to rent, 250 what rent entitled to, 251, 252 redemise clause, 252 equitable mortgage, 253 Mortgagee 's rights if lease subsequent, entitled to possession, 255 not entitled to rent, 255 when new tenancy implied, 256 Transfer of equity of redemption, 231 Satutory or contractual power to lease, 257 Subsequent lessee entitled to redeem, 408 Rights of equitable mortgagee, 686 INDEX. 779 Lien, Mortgagee paying taxes, 576 Improvements under mistake of title, 577, 587, 679 Lien notes, 107 Informal equitable charge, 76 See Execution creditors Limitation of estate in conveyance, S Limitation, statute of, must be pleaded, 417 Laches or acquiescence, 488, 489 Limitation of actions for personal payment, Action on covenant, 515 In case of mortgage after 1st July, 1894, 515 Arrears of interest recoverable, 515, 516 Action of debt, 516 Action for account, 516 If mortgagee trustee of surplus, 517 Effect of disability or absence, 517 if plaintiff under disability, 517 if defendant absent, 517 in case of joint debtors, 518 Acknowledgment or part payment, 518 necessity for writing, 518, 519 in case of joint debtors, 519 to whom, 520 by whom, 521 Limitation of actions to recover money out of land, What proceedings covered by statute, 522, 523 Limitation as to principal, 522 when time begins to run, 524 in case of express trust, 524 Acknowledgment or part payment, 522 by whom, 525, 526 to whom, 525 time of, 527 Limitation as to arrears of interest, 527 proceeds of sale, 528 in foreclosure action, 529, 530 in redemption action, 528 if prior mortgagee in possession, 531 780 INDEX. Limitiations of actions to recover money out of land con. Acknowledgment, effect as to arrears of interest, 531 time of, 532 Limitation of actions for possession, foreclosure or sale, Limitation prior to 1833, 532 Mortgagee not barred if in possession, 532 Real Property Limitation Acts, 534 Action to recover land, 535 applies to foreclosure, 536 or action for sale, 536 What constitutes possession, 536, 537 waste or vacant land, 537 Action by the crown, 538 When the right is deemed to accrue, 539 if claimant dispossessed, 539 if claimant dies, 539, 542 in case of tenancy, 540 mortgagor not tenant at will, 541 if claimant reversioner, 541 or remainderman, 541 joint tenants, 542 tenants in common, 542 Time runs against mortgagee, when he is entitled to possession, 543 although prior mortgagee in possession, 544 Concealed fraud, 545 Acknowledgment, 545 by whom, 546 to whom, 546 form of, 547 time of, 547 Part payment, 548 by whom, 548 payment of taxes, 550 Effect of bringing action, 550 action for possession, 551 action for foreclosure only, 551 Effect of disability of plaintiff, 553 INDEX. 781 Limitation of actions for possession, foreclosure or sale con. Extinguishment of title, 555 effect of statute, 556 Limitation of actions for redemption, Limitation prior to 1833, 532 Mortgagor not barred if in possession, 532 Real Property Limitation Acts, 534 Limitation if mortgagee in possession, 557 No extension for disability, 559 Nature of possession of mortgagee, 561 must be as mortgagee, 561 not referable to other right, 561 trustee for sale, 562 what constitutes possession, 563 wild or vacant land, 564 payment of taxes, 564 Possession of part of lands, 564 Acknowledgment by mortgagee, 565 by and to whom, 566 what constitutes, 566 time of, 567 if several mortgagors, 567 if several mortgagees, 567, 568 Limitation of actions under Land Titles Acts, 568 Limitation of right of distress, see Distress Lis pendens, 122, 529 Littleton, 3, 4, 36, 40 Loan, when implied from mortgage, 367 Locke King's Act, 269, 271 Lunacy Act, provision for vesting order, 317 Married woman, Capacity to make legal mortgage, 25 Married Woman's Conveyances Act, 25 Married Women's Property Act, 25, 26 Bar of dower, execution by, 25 Discharge of mortgage by, 25 Contracts and separate property, 26 Suing and being sued, 26, 374, 400 Form of judgment against, 374, 422 Under Land Titles Act, 26, 27 782 INDEX. Married woman continued Undue influence, 27 Mortgage to secure husband's debt, 27 Obligation to indemnify vendor of equity of redemption, 236, 240 Marshalling, Statement of doctrine, 244 Subrogation, 245 Application to sale of equity of redemption. if one parcel sold, 244, 245 if different parcels sold, 246 Master's office, proceedings in, Judgment for foreclosure or sale, 424 Judgment for redemption, 509, 510 Powers of the master, 424, 425 General conduct of the reference, 425 Considering judgment and adding parties, 426 Subsequent encumbrances, 427 who are, 428 Acquiring interest pendente lite, 429 Notices to other parties, 430 Taking accounts and appointing day for redemption, 432 proof of claims, 433, 434 taxation of costs, 435, 626 settling priorities, 435 time and place for redemption, 436 successive periods, 436 Master's report, 439 meaning of, 439 confirmation of, 440 appeal from, 441 effect of confirmation, 441 Subsequent accounts, 442 new day for redemption, 442, 444 if encumbrancer redeems, 444, 445 amount to be paid, 443 Stay of action on payment of arrears, 446 effect of acceleration clause, 446 Change of state of account, 447 Final order of foreclosure, 448 INDEX. 783 Master 's office, proceedings in continued Sale, who may require, 457 Sale proceedings, 460 powers of master, 460, 461 advertisement, 460 conditions of sale, 460, 461 reserve bid, 460, 461 conduct of sale, 461 deposit by purchaser, 461, 462 payment of balance, 462 report on sale, 462, 463 application of proceeds, 463 Judgment for deficiency, 464 Foreclosure after abortive sale, 464 Proceedings in redemption action, 511 Maxims of equity, He who seeks equity must do equity, 137, 147, 149, 487 He who seeks equity must come with clean hands, 487 Where the equities are equal, the first in time prevails, 94 Where the equities are equal, the law prevails, 97, 148 Mechanics liens, Under Registry Act, 123, 130 Under Land Titles Acts, 169, 172, 173 Merger, At law and in equity, 338 Prevalence of equitable rule, 338 Merger depends on intention, 339 unless owner personally liable, 339 Three tests of intention, 340 Stranger paying off mortgage, 340 Subrogation, 341 Intention expressly declared, 341 Conveyance to trustee not necessary, 341, 343 Deeds drawn under mistake, 341 Intention gathered from circumstances, 342 Presumption from consideration of benefit, 343 Mortgagee acquiring equity of redemption, 344 priority over subsequent mortgagees, 344 Tenant for life paying mortgage, 345 Notice of subsequent charges, 346 784 INDEX. Merger, continued Merger of mortgage debt in judgment, 605, 704 See Assignment of mortgage, right to Moratory statutes, see Mortgagors' and Purchasers' Relief Act Mortgage, Modern definition of, 6 Statutory definitions, 7, 8 Ancient forms of mortgage, 1 Mort gage and vif gage, 1, 4 Welsh mortgage, 4 Mortgage security is personal estate, 37 Under Land Titles Acts, definition of mortgage, 156, 157 form of mortgage, 158, 159, 160 importance of statutory form, 161 See Assignment of mortgage, Equitable mortgage, Equ- ity, legal mortgage in, Common law, Leasehold mortgage Mortgage action, Combination of claims, 349 See Account, Action on the covenant, Action for fore- closure or sale, Action for possession, Action for redemption. Limitation of actions Mortgagee, statutory definition, 8 See Assignment of mortgage, Devolution of estates Mortgagee in possession, What constitutes taking possession, 580 in character of mortgagee, 581 not as owner, 581 Attornment clause does not constitute possession, ^700 Rights of mortgagee in possession, 582 powers of management, 582 right to rents and profits, 583 application of rents and profits, 583 growing crops, 583, 584 carrying on business, 584 Bight to reimbursement for expenses, 584 improvements, 585, 586, 587 INDEX. 785 Mortgagee in possession, continued Obligations of mortgagee, 588 prudent management, 588 employment of agent, 588 Not obliged to assign mortgage, 336, 589 Liability for occupation rent, 589 Liability for rents and profits, 591 diligence required, 593 Liability for waste or deterioration, 594 Manner of taking accounts, 595 account with rests, 595, 596 account without rests, 596, 597 sale of part of land, 598 Mortgagor, Statutory definition, 8 Personal liability on covenant, 366 in absence of covenant, 367 notwithstanding transfer of equity, 233, 373 See Equity of redemption, transfer of, Indemnity, mort- gagor's right to, Devolution of estates. Mortgagors' and Purchasers' Relief Act, Proceedings not to be taken without leave, 742, 743 Includes derivative mortgage, 742 Expected cases, 744, 745 Powers of the judge, 746 Mortgagor may be put upon terms, 746, 747 Costs of application for leave, 747 Retroactive operation, 748 Power to make rules, 749 Land situate without Ontario, 749 Mortgage made without Ontario, 749 Action in another province, 749 Duration of the statute, 749 ,See the preface, p. vii Mortuum vadium, 1, 4 Negligence, see Title deeds Notice, Equitable doctrine of, 97 Actual notice, 98, 119 Constructive notice, 98 786 INDEX. Notice, continued Notice imputed to principal, 99, 100, 121 Notice under Registry Act, 110, 113, 117, 121 Notice under Land Titles Acts, 174-177 Doctrine of tacking, 148 Notice to mortgagor of assignment, 196 Assignee of mortgage without notice, 202, 203 See Priorities, Sale under power of sale Occupation rent, see Mortgagee in possession Opening foreclosure, see Action for foreclosure or sale, Sale and foreclosure under Land Titles Acts Oral evidence, That conveyance is really mortgage, 52 Of intention for or against merger, 343 Of terms and extent of security, 77 Of purpose of deposit of title deeds, 77, 78 To rebut implied indemnity, 235 Part payment, see Limitation of actions, Accord and satisfac- tion Parties, see Action for possession, Action on the covenant, Ac- tion for redemption, Action for foreclosure or sale, Master's office, proceedings in Payment, Place of payment, 377 What constitutes default, 376 Punctual payment, what is, 380, 381 To surviving mortgagee, 222 In case of joint account, 224 Subrogation of person paying, 128, 305, 312 Conditions of payment, Delivery of discharge or reconveyance, 301, 496 Indemnity if mortgage lost, 302 To whom payment is good, 500, 501 Payment "in full," 502 Remittance by mail, 502 Mortgage to secure floating balance, 503 See Limitation of actions, Accord and satisfaction, Ac- celeration clause, Tender Personal property, see Property Personal representative, see Devolution of estates, Executors and administrators INDEX. 787 Pleadings in mortgage action, 415 Possession, Eight as between mortgagor and mortgagee, 19, 350 Title by, as tenants in common, 10 Adverse possession under Registry Act, 127 under Land Titles Acts, 568 See Action for possession, Mortgagee in possession, Limi- tation of actions Power of sale, see Sale under power of sale Principal and agent, see Agent Principal and surety, see Surety Priorities, Equitable principles as to, 93 Between two equitable mortgages, 94 Between first legal and second equitable mortgage, 96 Between first equitable and second legal mortgage, 97 Equitable doctrine of notice, 97 Constructive notice, 98 First mortgagee may lose priority, 100 Purchase for value without notice, 101 Effect of getting in legal estate, 102, 103 Better right to legal estate, 104 Chattels annexed to realty, 22, 23 Failure to enquire for title deeds, 95, 97, 126 Negligence in custody of deeds, 96 Who entitled to reconveyance on payment, 324, 330 See Registry Act, Land Titles Acts, Consolidation, Tack- ing, Subrogation Property, Statutory definition, 8 Division into real and personal, 85 Chattel mortgages not discussed, 85 Leasehold is personalty, 85 But leasehold mortgage resembles mortgage of realty, 85, 94 Chattels affixed to realty, 20 Puffer, defined, 8 Purchaser, Statutory definition, 8 788 INDEX. Purchaser continued For value without notice, 11, 101, 148 Assignee of mortgage, 202, 203 Payment of purchase money not necessary, 203 See Equity of redemption, transfer of, Indemnity, mort- gagor's right to, Priorities, Sale under power of sale, Sale under judgment for sale Real property, see Property Real Property Limitation Act, English statute adopted in Upper Canada, 62 See Limitation of actions Receiver, For equitable mortgagee, 686 in lieu of possession, 686 payment of rent, 687 When appointment should be made, 687 Judicature Act, 688 Power of court to appoint, 689 even for legal mortgagee, 689 Who may be appointed, 689 Manager of business, 690 Mortgagee's power to appoint, 690 Conveyancing Act, 1881, 690 under express power, 691 Liability for receiver, 692 Powers and liabilities of receiver, 692 Recitals, In conveyance under power of sale, 677 In discharge of mortgage, 311, 312 Reconveyance, see Discharge or reconveyance, Assignment of mortgagee, right to Redemption, See Action for redemption, Action for foreclosure or sale, Sale under judgment for sale, Sale under power of sale, Limitation of actions, Common law, Equity, legal, mortgage in, Equity of redemption, transfer of, Law and equity in Upper Canada Redemise, See Action for possession, Attornment INDEX. 789 Registrar's office, proceedings in, see Sale and foreclosure un- der Land Titles Acts Registration, see Registry Act, Land Titles Acts Registry Act, Contrasted with Land Titles Acts, 151, 154, 162 What instruments may be registered, 106 Instruments affecting unpatented land, 107, 114 Affidavit of execution, 107 Security not purporting to convey land, 107 Manner of registration, 108 Mortgages not recorded in full, 108 Effect of not registering, 109 Actual notice of earlier instrument, 110 Constructive notice, in case of lease, 110 When lease must be registered, 109, 111 Unregistered instrument not void, 112 Easement expressed in instrument, 113 Implied legal right or interest, 113, 115 Effect of absence of consideration, 112, 146 Effect of registration as notice, 113 To whom registration is notice, 114 General intention of the statute, 116 When registration is complete, 117 Priority of registration, 117 exception in case of actual notice, 117 Unregistered equitable claims, 119 Registration of equitable mortgage, 107, 120 Equitable interest expressed in instrument, 115 Implied equitable interests, 115, 121, 122 Subsequent advances under prior mortgage, without notice of other mortgage, 122 after notice of other mortgage, 122 after registration of other mortgage, 123 after registration of merchanics lien, 123 after writ of execution, 124 building loan, 124, 125 Effect of statute on priorities, 125 Effect of negligence, 126 Registration docs not validate forgery, 127 Adverse possession, 127 790 INDEX. Registry Act, continued English and Irish registry acts, 127, 128 Subrogation on payment of mortgage, 128, 305, 312 Mechanics liens, registration of claim, 130 priority of registration, 130 priority over earlier mortgage, 131, 133 application of insurance money, 132 Consolidation of mortgages, 145 Doctrine of tacking, 147, 120 Registration of discharge, 303, 304, 305 effect of registration, 308 Quaere whether statute must be pleaded, 418 Release, Of equity of redemption, 55, 56 Of debt releases collateral security, 301 Renewal of lease, see Leasehold mortgage Rent, see Attornment, Leasehold mortgage, Limitation of actions Repairs, Mortgagor not obliged to repair, 577, 578 Implied covenant, 741 See Mortgagee in possession Report, see Master's office, proceedings in Sale and foreclosure under Land Titles Acts, Ontario, foreclosure or sale, 466 sale under power of sale, 683 Manitoba, no jurisdiction in court, 467, 469 proceedings in registrar's office, 467 N.W.T., court alone has jurisdiction, 471 Saskatchewan, court has jurisdiction, 471 alternative procedure in registrar's office, 471 Alberta, court has jurisdiction, 472 alternative procedure in registrar's office, 472 Foreclosure by the court, 473 Opening foreclosure, 474, 469 Sale in registrar's office, 474 default and notice, 474, 475 mode of sale, 475 when right of sale exists, 476 INDEX. 791 Sale and foreclosure under Land Titles Acts, continued Sale in registrar's office, continued transfer to purchaser, 478 application of proceeds, 478 effect of transfer, 479 Foreclosure in registrar's office, 480 application for foreclosure, 480 service of notice, 480 advertisement, 482 order of foreclosure, 482 acceleration clause, 483 enforcing covenant, 485 Contractual power of sale, 683, 684 Sale under judgment for sale, Right to foreclosure or sale, 389, 390 Action for sale, 455 Sale in foreclosure action, 456, 457 Writ of summons for sale, 456 Plaintiffs in the action, 399 Original defendants, 401 Pleadings, 415 Interlocutory judgment, 459 form of, without reference, 422 form of, with reference, 424 Time for redemption, 459 Stay of action on payment of arrears, 446 Change of state of account, 447 Final order of sale, 459 Conduct of sale, 460 See Action for foreclosure or sale, Master's office, pro- ceedings in, Limitation of actions Sale under power of sale, Origin of the power, 631 validity now settled, 632 usual term of mortgage, 633 Statutory implied power of sale, 633 Lord Cran worth's Act, 634 Conveyancing Act, 1881, 634 Mortgages Act, 634 792 INDEX. Sale under power of sale, continued Contractual power of sale, 638 various forms of, 638 suggested special form, 638 Statutory short form of power, 640 extended form, 640 Qualifications of short form, 642 to what extent permitted, 642, 643 rights of assignee, 643, 644 former sales validated, 645 Who may exercise the power, 646 not assignee, unless mentioned, 646 appointment of attorney, 647 administrator, 648 trustee, 648 survivor of two mortgagees, 649 first and second mortgagees, 649 When the power may be exercised, 649 governed by terms of power, 650 acceleration clause, 651, 652 Power of sale without notice, 653 validity recognized, 653 deed absolute in form, 653 trust for sale, 654 Form and service of notice, 654 contents of notice, 654 form of notice, 655 service of notice, 655-660 Registration of notice, 661 Concurrent proceedings by mortgagee, 662 right of mortgagee, 349, 395 not after notice or demand, 663 nor by separate actions, 396 Statutes of limitation, right to sell under power, 523, 652 arrears of interest, 528, 681 as to surplus, 517, 681 Conduct of the sale, 665 mortgagee not a trustee, 665 except as to surplus, 665 INDEX. 793 Sale under power of sale, continued Conduct of the sale, continued liable for wilful default, 666 or recklessness, 666 inadequacy of price, 666, 680 auction or private contract, 667 advertisement, 668, 669 sale of part of lands, 669 sale en bloc, 670 exchange of lands, 670 special conditions, 671 deposit, 672 sale on credit, 683 Who may purchase, 673 not the mortgagee, 673 nor his agent or trustee, 674 subsequent encumbrancer, 675 mortgagor, 675 Conveyance and its effect, 676 purchaser without notice, 678, 679 Application of proceeds, 680 Service, see Sale under power of sale, Action for foreclosure or sale, Master's office, proceedings in Settled Estates Act, 32, 33 Short Forms of Mortgages Act, Effect of short forms, 731 Qualifications and exceptions permitted, 732 Alteration of short forms, 642, 643, 382 Form of mortgage, 732, 733 What conveyance of land includes, 10 Bar of dower, 290 Proviso for defeasance, 299 Covenant for payment, 369 Covenant for good title, 734 Covenant for right to convey, 734 Covenant for further assurance, 734, 735 Covenant for production of deeds, 736 That mortgagor has done no act to encumber, 736 Covenant for insurance, 714 "Release subject to proviso, 737 794 INDEX. Short Forms of Mortgages Act, continued Power of sale, 640 License to distrain, 695 Acceleration clause, 377 Quiet possession until default, 355 Quiet possession after default, 257, 356 free from all encumbrances, 356, 357 Statute not applicable to leaseholds, 85 Under Land Titles Acts, 732 Sources of law of mortgage, 5 Specific performance, Agreement to borrow or lend, 80 Agreement to give security, 80 .Statute of Frauds, see Frauds, statute of Statutes of Limitations, see Limitation of actions Stay of proceedings, In action for foreclosure or sale, 446 Effect of acceleration clause, 446 Sub-lease, see Leasehold mortgage Sub-mortgage, see Derivative mortgage Subrogation, Under Registry Act, 128, 305 On transfer of equity of redemption, 245 sale of one of two parcels, 244, 245 sale of parcels to different persons, 246 Stranger paying off mortgage, 340, 341 In case of fire insurance, 721, 722, 723, 725 Subsequent advances under mortgage, 122, 131, 168 Subsequent encumbrancer, Right to reconveyance, 324, 325 Costs of, 627 See Master's office, proceedings in Surcharge, 574, 575 Surety, Mortgage made as, 40 Mortgage by wife to secure husband 's debt, 27 Right to redeem, 414, 415 Party in foreclosure action, 414, 415 Assignor of mortgage, 207 may be discharged, 207 INDEX. 795 Surety continued Transfer of equity of redemption, mortgagor not a surety, 242, 386 Original and collateral liability, 243 Action on surety's covenant, 367 Discharge by giving of time, 375 When entitled to demand before action, 376 Surplus, see Sale under judgment for sale, Sale under power of sale Tacking, Doctrine of, in equity, 105, 147, 148 Depends on legal estate, 148 Depends on absence of notice, 148 Origin of doctrine, 137 Distinguished from consolidation, 147 Provision of Registry Act, 147, 120 So-called tacking to avoid circuity of action, 149 Taxation of costs, 628 Taxes, Lien for taxes paid by mortgagee, 576 Statutes of limitation, 550, 564 Tenancy, tenant, Tenants in common, 10 Joint tenants, 10, 11 Overholding tenant, 353 Tenant at sufferance, 353 Tenant at will, 353 See Attornment, Distress, Leasehold mortgage, Lessee of mortgaged land, Fixtures, Curtesy, tenancy by the Tender, Requisites of, 497 by and to whom, 497 place of, 498 production of money, 498 under protest, 499 cheque not sufficient, 499 Must be unconditional, 499 but mortgagor entitled to discharge or reconveyance, 496, 499 796 INDEX. Tender continued Effect of tender, 496, 499 Legal tender in Canada, 500 Terre tenant, 19 Timber, Cutting by mortgagor in possession, 578 Cutting by mortgagee in possession, 595 Title deeds, Legal mortgagee entitled to, 19 Mortgagor may inspect, 19 Deposit of title deeds, 77 Failure to enquire for, 95, 97, 126 Negligence in custody of, 96 Transfer, see Assignment of mortgage, Equity of redemption. transfer of Transmission, see Devolution of estates Transmission under Land Titles Acts, Land devolves on personal representative. 225 Personal representative registered as such, in Ontario, 227, 228 in Manitoba, 225, 228 in Saskatchewan, 226, 227 not in Alberta, 226, 227 nor in Northwest Territories, 226, 227 Relation between personal representative, and the beneficiaries, 227 and third parties, 227, 228 Trespass, Action by mortgagor for, 358 Action by mortgagee for, 360 Trustee, Suing and being sued, 399, 400 Power to mortgage, 27 Covenant by trustee to pay, 370 restriction of liability, 370 Mortgagee, when trustee of surplus, 681, 682 Mortgage not trustee except of surplus, 685 Obtaining renewal of lease, 92 Declaration of trust in sublease, 90 Cestui que trust may compel trustee to lend name, 372 INDEX. 797 Trustee, continued Statutes of limitation, 517, 524 See Executors and administrators, Devolution of estates, Transmission under Land Titles Acts, Cestui que trust Undue influence, 27 Value, valuable consideration, see Consideration Vivum V odium, 1, 4 Voluntary mortgage, Not protected under Registry Act, 109, 112 Whether protected under Land Titles Acts, 179, 180 Fraudulent and voluntary mortgages, 11 Waste, By mortgagor in possession, 577 By mortgagee in possession, 594 Welsh mortgage, 4 Writ of summons, Special endorsement, 398 In action for foreclosure, 395 In action for sale, 466 In action for redemption, 509 r